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contentsIN THIS ISSUE5 Personal Injury – the role of the engineer11 Durability and merchantability13 Jones v Kaney – nine months on20 ADR – best solution when both parties need each other33 Closure of the Forensic Science Service - what will it mean for my clients?

OPENING STATEMENT4 by Martina Wilson, Business Development Manager

ROAD TRAFFIC7 Forensic collision reconstruction – traffic management investigations9 Meteorological aspects of a road traffic accident10 Speed bumps – the problems

FINANCIAL15 Of riots and revenues – quantifying the financial impact of disruptions17 Directors’ liability for wrongful trading – latest development18 Fraudulent trading – the forensic accountant’s role19 Loss of profits claims

CONSTRUCTION21 Expert Witnesses need to understand significance in assessing ‘setting’23 The timetable for preparing the Experts’ Joint Statement and Expert’s Reports25 When is ‘reasonable’ reasonable?27 Everyone’s an expert – or are they?

DIGITAL FORENSICS28 Which service do you require?29 Cell site analysis – myths, lies and the truth

VETERINARY ISSUES30 Veterinary legal work31 Blowfly strike in sheep: nature or neglect?

FAMILY & RELATIONSHIP MATTERS35 Reviewing the role of the expert witness in childcare court cases37 Forced marriages – an international perspective

EXPERT CLASSIFIED58 Expert witness classified listings62 Medico-legal expert witness classified listings

MEDICAL ISSUES

38 PIP patients: will clinics bow to Government pressure?39 Temporomandibular disorders (TMD) – Jaw joint problems41 Gum disease: the silent destroyer!43 Problems with pulmonary embolism45 Fibromyalgia47 The psychology of chronic pain49 What is RSI? – part 251 Common knee injuries – diagnosis and prognosis53 Road traffic accidents and their consequences55 Asbestos related conditions57 Cervical screening

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MartinaMartina WilsonBusiness development manager

Opening Statement

It seems ironic that, at a time when advances in forensic science have been used to produce evidence that led to a conviction in the Stephen Lawrence trial years after the event, the Forensic Science

Service is to be closed down on the grounds of cost. According to the Home Office minister responsible for crime reduction, James Brokenshire MP, last year the service was losing £2m per month and was set to run out of money this month.

He is quoted as stating in a written statement to MPs: “The police have advised us that their spend on external forensic suppliers will continue to fall over the next few years as forces seek to maximise efficiencies in this area. We have therefore decided to support the wind-down of the FSS, transferring or selling off as much of its operations as possible.”

That process continued last month when the operations of its Wetherby laboratory were transferred to the private company LGC Forensics. That is where the issue becomes less clear cut, because it was LGC Forensics that came up with the key evidence in the Lawrence case, according to their own statements. LGC claim to have found evidence in numerous ‘cold cases’ that had been missed or unavailable in the original investigations.

Despite the undoubted successes of LGC, the fact remains that to have a police force that relies on private enterprise for its investigations sits ill with our view of how justice should be dispensed.

The impact of the closure is covered in more depth on page 33 of this issue by forensic science experts Hayward Associates.

* * * This magazine’s website – www.yourexpertwitness.co.uk – has recently acquired a weekly blog, written by our former editor Chris Stokes. Together with blogging, social networking sites are becoming increasingly popular as a way for businesses and other organisations to express opinions and exchange views – not to say go about publicising themselves.

That trend is bound to include legal practices, and in order to ensure lawyers stay within the bounds of legal decency, so to speak, the Law Society has published a Practice Note dealing with the issue.

As a guide to responsible use of such media it is something we all should follow. In particular, it deals with the issue of who owns a list of contacts or ‘followers’, thus enabling us all to avoid the kind of expensive law suit imminent in California (where else?) over the 17,000 followers of Noah Kravitz, which his former employer Phonedog claim are ‘theirs’. The plaintive cry of Patrick McGoohan springs to mind: “I am not a number; I am a free man!”



Personal Injury –the role of the engineer

Many of the articles about personal injury in this journal relate to the medical aspects of the injury. So where does the engineer come in?

In most cases the engineering evidence relates to causation and so is ultimately very important in determining the size of the compensation payment. This applies equally to industrial/workplace injuries and those sustained by members of the public. However, the regulations that apply to workplaces are quite different to those applying to the public and this also needs to be taken into account.

In this article I will give examples of different engineering disciplines being used to investigate what happened.

MachineryA mixing machine in a soap factory was modified for production

reasons soon after it was purchased. However, the modification works were carried out in such a way that an important safety interlock no longer functioned as intended. As a consequence an operator was able to put his hand into the mixer while it was still operating. He lost part of some of his fingers.

In other cases the employee may be at fault. At a glass bottle making factory a maintenance worker suffered a hand injury when it was caught in a machine which started to operate unexpectedly. Investigation of the control, safety provisions, operation and maintenance of the machinery revealed that a safety device would have had to be over-ridden and a button pressed before the machine would start.

Woodworking equipment is the cause of a significant number of industrial injuries each year and circular saws are particularly hazardous. An employee injured his hand while removing off-cuts from a circular saw. He alleged that the saw was misaligned and not properly guarded.

By the time I was asked to inspect the saw, it had been taken out of use and was in storage. There was no evidence that the guard was an incorrect one, or that it could not be adjusted to the correct height. At the time of the accident the saw complied with safety requirements. Training and push-sticks had been provided. I therefore concluded that the injury must have been caused inadvertently by the joiner himself.

Risk assessments and protective clothingA council employee allegedly injured his back moving large metal

wheeled bins in and out of a bin store. The matter hinged on whether various provisions of the Manual Handling Operations Regulations 1992 had been breached. In this case the manual handling involved

pushing and pulling rather than lifting. The regulations and associated guidance cover this type of manual handling and give suggested limits to the load to be pushed/pulled. However, the space available was confined and the floor sloped.

I visited the site and measured the force required to manipulate the bins. I also reviewed the Council’s training records and risk assessments. The conclusion was that the manual handling operation could not have been avoided and that the Council had taken the necessary steps to minimise the risk of injury.

In another case a man was assisting his colleagues to load materials for recycling into a vehicle. He was wearing a pair of protective gloves. While removing the mixed materials from a recycling bin his hand was cut by the neck of a broken glass bottle.

The protective gloves had a ventilated back area and natural rubber coated palm. They also had a CE mark. Investigation revealed that they were suitable for construction, DIY, gardening, glass handling and general handling purposes.

I concluded that the front of the gloves was suitable for handling the waste objects as specified. However, the back was not protective and therefore, in this particular case, did not protect the hand of the man against injury from the side or back when reaching into the recycling bin.

A full risk assessment of the task would have identified the possibility of injury to the back as well as the front of the employee’s hand.

Mechanical and materials engineeringA fast rescue craft was being lowered from a vessel with a

maintenance engineer in the craft. The wire rope holding the craft snapped, causing injury to the engineer.

The matter hinged on the reason for the failure of the rope and whether, with good maintenance, the deterioration should have been detected. During previous maintenance the sheave over which the rope passed had been replaced with a sheave of smaller dimensions. This change in geometry placed an increased load on the rope during launching of the vessel. Calculations showed that this increase alone would not cause sudden failure.

I concluded that the rope failed by repeated small overloads caused by the undersized geometry of the sheave. The deterioration of the rope should have been visible and preventive action could have been taken.

by DAPHNE WASSERMANN, CEng, FIMechE, MIMMM, MCIWM

Circular saw

Waste bins

Fast rescue craft


Trips and fallsNumerous accidents occur from trips, slips and falls both in the

workplace and in public areas.An office employee tripped, fell and was injured while making her

way from the ground floor down internal stairs to the basement. Measurements revealed that at a certain point the step height changed. This, combined with a lack of handrails, was the probable cause of the fall.

Many slips occur on surfaces that are not a hazard when dry but which become slippery when wet. Cadogans’ engineers have carried out slip tests with standard equipment on various floors where accidents have happened. In many cases, access should be restricted in such areas after wet cleaning.

Potholes in roads and uneven paving stones are common causes of trips. In these cases we need to measure the size of the defect and provide an opinion on how long the defect had been present and how frequent the inspections of the locus should be. Guidance on acceptable defect size and maintenance regimes is given in Government codes of practice. q

• Daphne Wassermann is a Technical Director at Cadogans, specialising in mechanical engineering and materials aspects of disputes. Cadogans accepts instructions relating to engineering and health and safety matters from within the United Kingdom and abroad. For details of Cadogans’ full range of services and specialist expertise please contact us by telephone or visit our website.

Measuring slip resistance


Forensic collision reconstruction – traffic management investigations

Road works are seemingly an ever present feature on the nation’s highways, so commonplace in fact that the majority of drivers probably take them for granted, paying little attention to

them over and above the annoyance at having had their journey times extended.

But have you ever stopped to wonder how it is that, despite the disruption caused, somehow traffic is still able to flow, people are still able to reach their destinations and all without any undue incident?

The answer is by the use of safe and effective systems of temporary traffic management.

We are all familiar with the dreaded lines of traffic cones and all the associated signs, barriers and so forth that are found at road works. It may often seem that they are put there simply to make life difficult but in reality their purpose is to enable the safe passage of all road users, including pedestrians, as well as to provide a safe working area for those carrying out the works.

A safe and effective system will achieve the desired aim of ensuring that any road user, approaching from any direction, will know exactly what is required of them. In other words, they will be left in no doubt as to

how they will proceed through the area affected by the works.Despite the fact that the majority of road works schemes are carried

out safely, collisions can and do still occur at road works. In fact, in England and Wales, there were almost 2,000 such incidents during 2010, which was a slight increase on the total for the previous year.

Whilst human error is undoubtedly one of the causation factors, and the fact that a collision has occurred when road works were present may be entirely unconnected with the temporary road layout, the potential for collisions to occur as the result of the poor or unsafe use of temporary traffic management should not be overlooked.

Malcolm Price, of Accident Investigation

and Traffic Management Services, offers an expert witness service to the legal and insurance professions which includes considerable experience and expertise in temporary traffic management systems, including high speed roads and motorways.

Based in Oxfordshire, but covering the whole of the UK, Malcolm is a specialist Forensic Collision Investigator who is able to provide a full range of accident investigation and reconstruction services.

He is also qualified in temporary traffic management, registered with the national Street Works Qualification Register and has many years experience of assessing temporary traffic management layouts and of conducting safety inspections at road works.

When temporary traffic management features in a collision investigation, a full review will be conducted of all available documents, including any drawings that were prepared for the temporary road layout, contemporaneous scene photographs and any other material that relates to what was in place, where it had been placed, how it had been set out and by whom.

Other elements that will form part of the investigation will include the design process by which the temporary traffic management system was developed and whether or not an inspection regime had been put in place in order to ensure that the various items of temporary traffic management had remained in place and correctly displayed.

Once all of those facts have been established, the investigation will then focus on whether or not the relevant legislation, such as the New Roads and Street Works Act and the Traffic Signs Regulations and General Directions, has been complied with and the guidance, for example that contained within Chapter 8 of the Traffic Signs Manual on temporary traffic systems, has been correctly applied.

That investigation will be carried out alongside a review of all of the other evidence available, thus enabling a full forensic reconstruction of the collision to be completed

It is then possible to establish whether or not the temporary traffic management met the required standard and was a causation factor in the collision, in addition to identifying any other factors that may have contributed to the collision.

The result is that those instructing are provided with a full reconstruction report which gives a complete picture of all of the factors involved in the collision.

In the event of either criminal or civil proceedings, Malcolm is experienced in presenting his expert evidence at both civil and criminal courts. q

Safe? Effective?


Meteorological aspects of a road traffic accidentby JOHN COATES-GREETHAM Forensic Meteorologist

CASE STUDY DAVID PENHALIGON -V- JAMES BARRYROYAL COURTS OF JUSTICE, STRAND, LONDON

On the morning of the 22nd December 1986, a cold and frosty morning, Mr Barry was delivering bread and cakes in a Ford Transit van. As Mr Barry drove down a hill on the A390, the

Truro to St Austell road, he lost control and collided with a Rover driven by Mr David Penhaligon. Mr Penhaligon, the MP for Truro, who was driving towards St Austell, died as a result of the collision. There were no witnesses to the accident but very soon afterwards a coach came upon the scene and tried to drive between the two crashed vehicles. It hit both vehicles and the Transit burst into flames. The driver of the coach had applied his brakes but it was ‘like a skater on ice’.

The site of the accident was on a bend at the bottom of a hill and evidence was given that it was a black spot because of high speeds but not due to ice. However the site was in a hollow, sheltered by high ground, and therefore likely to be colder than flatter and more open places.

Firemen arrived and put out the fire whilst other people went to the assistance of Mr Barry who was lying injured on the road. They all described the road surface conditions as being very slippery and icy. There was also evidence that Mr Penhaligon, despite being a strong supporter of wearing a seat belt, was not wearing one.

Three parties were involved – the plaintiff, the defendant and Cornwall County Council – but only the defendant had engaged a meteorologist.

The case for the defendant was that the Cornwall CC did not salt the road surface prior to the accident even though danger warnings were in force. The warning was for ice to form after 8pm on the 21st and last until 10am on the 22nd, however there was evidence that rain was falling well after it was forecast to stop. The case for Cornwall CC was that the salting had been delayed due to rain and evidence was given that it would have been carried out during the evening but for that rain. Kent CC salted during the evening before the rain reached the Kent

area, but the rain washed the salt away resulting in many icy roads by morning and numerous accidents. The weather forecast had been for a belt of rain to cross and clear the area during the early evening, leaving clear skies and light winds – ideal conditions for a rapid fall in temperature and the formation of ice on the road surface.

The meteorological expert for the defence was asked to supply a weather report, make a site visit and give evidence at court. The report was based on data from the nearest weather stations and witness statements. There was a good deal of evidence that ice had formed on the roads quite early and the data from the weather stations supported the witness evidence. Two salting lorries were scheduled to check the state of the roads at 5am. They reported no problems and recorded road surface temperatures as being 1ºC. A lorry driver, who drove through the site on a salting run just after the accident, said in evidence that he did not realise the road was icy until after he had passed through and saw two lorries that had slid off the road. Another lorry driver drove through the site about twenty minutes before the accident but said that he saw no ice or wetness despite the rain the previous evening. He was back at the Tresillian depot by the time of the accident and heard the emergency vehicles en-route to the scene.

The weather expert for the defendant said that, in his opinion, salting should have been carried out after 5am and not after waiting for lorries to cover the area and report back. He added that, in particular, salting should have been done where skies were clear and that the Met Office should have been consulted. The judge said that the final judgement should be left to the people on the ground. The evidence of the lorry drivers contradicted both eye witness and meteorological evidence, with not one of them reporting wet roads despite earlier rain close to and probably at the site. Witness evidence was given that rain was falling seven miles from the site at 10.45pm the previous evening.

Evidence was produced that it was very likely that the foreman in charge of the gritting did not see the open road forecast. Indeed, he said that had he seen it, he would have ordered gritting at 5am without sending lorries out to inspect the roads.

After the defence expert had given his evidence, counsel for Cornwall CC tried to obtain a weather expert to comment on his testimony and contacted the Met Office, but at this late stage they were unable to supply anyone.

In his judgement the judge found against the defendant and for the plaintiff and Cornwall CC. He said that, although there was no doubt that there was ice on the road surface at the site, this was not relevant.This judgement appeared to surprise counsel for all three parties. q

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Speed bumps - the problemsby PROFESSOR MALCOLM H POPE Dr Med Sc,PhD, DSc

In the UK, so-called traffic-calming is used to reduce vehicle speed and volume on residential streets and is of the following forms:

Speed bumps are placed across the road to slow traffic and are often installed in a series of humps in order to prevent cars from speeding before and after the hump. Usually they are 3.7 to 4.25m in length and have a height which is between 7.5 to 10 cm, however some have been reported as high as 15cm. Some reports show an average 18% reduction in traffic volume and an average 13% reduction in collisions. Other similar devices are speed tables which are longer with a flat section in the middle – cars are slowed down less, compared to speed humps. Speed cushions are commonly a series of three humps that are ideal for use on streets when emergency vehicle response time is a concern.

A major criticism of speed humps is the effect on ambulances and fire engines. The longer wheel base, stiff suspension and sensitive equipment forces a driver to almost stop. Reports show response time is slowed by 4 seconds per hump for fire engines and 10 seconds per hump for ambulances with patients. Another criticism is the increase in traffic noise, increased fuel consumption, vehicle damage, noise and pollution from braking. A report by Ronald Bowman in 1997, compared the relative risk of speeding and the effect on emergency vehicles. He found that that even a minor delay to an emergency response due to speed bumps results in a far greater risk than speeding vehicles. Bowman’s analysis showed a risk factor of 85 - 1 from an additional one minute of delay.

The Transport Research Laboratory also found that CO emmisions increased by 59%, HC by 54%, NO2 by 8% and CO2 by 26% due to speed bumps – a serious environmental concern. Speed bumps are uncomfortable, indeed painful to many people – in

fact they only work when they are uncomfortable, as Transport Research Laboratory (TRL) Report 417 makes clear. Unfortunately, many people who suffer from medical conditions such as back problems (one of the most common medical complaints), recent abdominal surgery or other disabilities find them extremely painful. Other medical problems reported in the literature include persons with osteoporosis, motor neurone disease, post back surgery and kidney transplants, as well as wheel chair users and people with jaw dislocation and brain cysts. There are others as yet unreported.

Speed bumps are designed to generate loadings of 0.69g, whereas US publications recommend 0.3g for wheel chair users. In a study in Sweden, it was found that bus drivers are exposed to health risks due to mechanical shocks when travelling over speed bumps. The vibrations were measured under ISO 2631-5 using seat pad accelerometers and it was found that high health risks due to spinal compression occurred even at low speeds. A study in Scotland found similar results.

In conclusion, the overwhelming information is that speed bumps are largely ineffective but create numerous difficulties to emergency vehicles, the public and the environment. q

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Durability and merchantabilityby PROFESSOR JULIAN ELLIS OBE, Chartered Textile Technologist

Many textile goods are not durable products, such as fashion garments which have a relatively short life and may be worn for one season only before being discarded.

However, some of us like to hold on to clothes for many seasons, despite their becoming unfashionable!

This, therefore, potentially causes problems when asking the question of clothes as to what is merchantable quality?

Obviously, the requirement is that they be fit for the purpose for which they are intended, but for what purpose are clothes intended when users’ requirements are different? With the arrival of cheap clothing, it is now more common for them to be discarded quickly, even when they still have utility, simply because they were purchased for wear on one or two occasions only. But how is the expert able to sort out these conundrums?

For disposable garments – such as those used for protection, perhaps while painting at home – it is not reasonable to expect to wear them much longer than a day (unless of course the packaging states otherwise). There is no real need for them to continue to look smart after a few hours of use, and if the goods begin to wear thin, or show signs of falling apart after a weekend of decorating, I cannot see that there is anything to complain about. On the other extreme, however, it is unusual for a wedding dress to be worn for longer than a single day, and yet it is very reasonable to expect that it remain in pristine condition for the whole of the ceremony and aftermath and show no signs of wear or tear.

Although not often reused, it should be expected that a wedding dress must still be in a suitable condition to be cleaned and re-used (hopefully by a different bride) on a future occasion. A wedding dress may well become soiled during a wedding celebration, perhaps by the bottom dragging on the ground or by a drink being spilled down it. That is normal wear and tear, as is it becoming caught in a car door and ripping. Despite it being a disaster for the bride, that is not the fault of the manufacturer or the salesperson. What is their problem is when the stitching of the dress becomes loose during the day. Wedding dresses are often complex garments, made with heavy but delicate fabrics, and there must be skill and care applied to their manufacture. When deciding if a garment is of merchantable quality we must ask:

• How much was paid?• What is a reasonable expectation for its normal expected life?

• How much skill could reasonably be expected from the designer• and manufacturer?These matters can sometimes be the subject of disputes which

will get as far as trial. If an insurance company has taken over the case, they may show a lack of understanding of the complexity of clothing use, not being specialists.

I think the ultimate objection was the insurer of a retailer who took the view that a swimming costume was for swimming, and its fitness for purpose as a garment worn for sunbathing was irrelevant. The dark navy and white broad striped costume in question had allowed sun through the white stripes, but not through the dark, with the result that the wearer came out, after a single afternoon in the sun, with broad brown and white stripes on her body, which lasted all summer. This not only exposed her to some ridicule when wearing some summer clothes, but spoiled her income as a part-time clothing model. Do you wear swimwear for swimming only when on holiday? Fortunately the insurers reconsidered their opinion before the matter came to trial. q

• Professor Julian Ellis OBE is a chartered textile technologist, who has worked as an expert witness for 30 years, as well as carrying out research into new applications for textiles.


Jones v Kaneynine months on by CHRIS MAKIN

On 30 March 2011, the Supreme Court gave its judgment in Jones v Kaney [2011] UKSC 13, the case which saw an end to the expert witness’s immunity from suit in

negligence. This reversed a line of authority dating back 400 years and commentators have called it a landmark ruling, a historic decision, a major victory for claimant lawyers, the end of the amateur expert and the professionalising of the expert witness industry. How valid are these comments?

Let us consider what has changed over the last nine months. First, the facts. Paul Jones was a motorcyclist, injured in an RTA by one Bennett, a car driver who was drunk, uninsured and disqualified. Dr Sue Kaney, a consultant clinical psychologist for the claimant, produced a report saying that Mr Jones was suffering from PTSD. Dr El-Assra was appointed by the defence, and he disagreed. There was an experts’ discussion by telephone and Dr El-Assra drafted a joint statement and sent it to Dr Kaney for her agreement. It stated that Dr Kaney had changed her opinion – Mr Jones had suffered only from an adjustment reaction not PTSD and had been ‘very deceptive and deceitful in his reporting’. Unsurprisingly, this was hugely damaging to the claim and Mr Jones felt obliged to settle for damages much lower than he thought were his due.

It emerged that the joint statement did not reflect Dr Kaney’s views at all. She had felt under pressure to sign the joint statement and had done so without even reading it!

Mr Jones sued Dr Kaney for negligence, and lost at first instance because the Court of Appeal in 1998 had said in Stanton v Callaghan that experts could not be sued for negligence in preparing joint statements. So the claimant was allowed to leapfrog his appeal directly to the Supreme Court, which found by a majority of 5 to 2 that the expert could be sued. So, now expert witnesses can be sued for negligence in the evidence they give (an expert’s evidence includes their report and their joint statement as well as any oral evidence given at the hearing) which is quite different from the immunity given to witnesses of fact.

Space does not allow discussion of the reasons for the majority decision, or the interesting views of Lord Hope and Lady Hale who dissented, and we must turn to what difference this has made to the expert witness ‘industry’.

I suppose serious experts such as the writer could complain about Dr Kaney letting the side down. After all, it was naïve to sign a joint statement without reading it, whereas the joint ‘meeting’ of experts and the joint statement form an important part of the expert’s evidence. But I have no sympathy with that. It is basic law that there should be no wrong without a remedy, and if an expert has failed in their duty of care to their client (as well, in this case, as expressing to the Court an opinion which she does not even hold) then they should be held responsible.

There is ongoing debate about whether experts should be amateur or professional and that depends, in my view, on how fast-moving is the area of expertise needed. In some fields, such as highly specialised areas of medicine, a clinical practitioner may be essential. In others, such as my field of accountancy, it is acceptable for full-time experts to keep abreast of developments through regular training. Of course an expert must not take on a case unless they do have detailed and current knowledge, and that must be kept under constant review. Only last week I turned down an assignment which required specialised knowledge which I could not profess to hold. But this is rare.

The point to appreciate by experts, and by those choosing to appoint them, is that they must in effect be members of two professions – they must of course have qualifications and experience in their own field, but they must also know enough about being an expert to carry out those functions effectively. This must include knowledge of the CPR or equivalent; of how to write an expert report and what it must contain; of how not to stray outside one’s own field of expertise; of how to conduct a ‘meeting’ of experts; of how to give evidence at a hearing... and so on.

This is something which I recognised early in my career as an expert accountant. I had taken the trouble to be properly trained at The Academy of Experts (where I am now a fellow), yet I regularly met at trial accountants who thought it was ‘sexy’ to act as an expert, who thought it a useful way of filling in between their audit assignments but who didn’t have a clue about their duties to the court as an expert. These ‘wannabees’ were doing the legal process no good at all, let alone the damage they were doing to my profession.

So, when I first joined the committee of the Forensic Special Interest Group at the ICAEW, we developed a carrot and stick approach against such enthusiastic amateurs. The stick was that a chartered accountant who took on a case they were not competent to perform would be disciplined by the ICAEW. The carrot was that those who could demonstrate a very high standard of expertise in expert witness work, as well as being competent chartered accountants, would have the kudos of being recognised as a leader in their field and gain more appointments.

And so it has come to pass. It took seven years to perfect, but the ICAEW accreditation scheme was launched in late 2010, and the handful who have demonstrated the very high standard required may be found at www.icaew.com/forensicaccreditation/register. These are the members of the two professions necessary to perform expert witness assignments.

In my view, Jones v Kaney has changed little. It merely emphasises the importance of choosing horses for courses. An expert who takes on more than he should and makes a mess of it may be sued, and quite right too. But in choosing your experts, if you go for someone who bears the kitemark of their professional body as being an expert expert witness, you will be in safe hands, and your clients will receive the high standard of service they deserve. q

• Chris Makin is one of only 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/forensicaccreditation/register. He is also an accredited civil and commercial mediator and an accredited expert determiner. He has given expert evidence at least 70 times and worked on a vast range of cases over the last 23 years. For CV, war stories and much more go to www.chrismakin.co.uk.


Of riots and revenuesThe complexities of quantifying the financial impact of disruptions

by DR DARRELL JAYA-RATNAM

The sudden conflagration that was the London riots of August 2011 has now faded from the media’s gaze, but the important job of recovery and learning the lessons is still underway. The initial focus

of attention was the destruction of buildings such as the Reeves furniture warehouse in Croydon and the loss of stock due to burglary (44% of the 3,443 criminal acts recorded during the riots were as burglaries, according to Ministry of Justice). But the more significant and longer lasting impact was the indirect effect – according to analysts, Retail Economics, 899 premises were attacked but, in comparison, it is estimated that as many as 48,000 shops, pubs and restaurant suffered indirectly.

The two key elements of this indirect impact are lost trading hours through closed stores and reduced footfall through customers preferring not to enter the affected areas.

According to a recent survey by the British Retail Consortium (BRC), which represents nearly 30% of retailers, 30,000 hours of trading were lost. While some of the stores had to close early due to damage, most shortened their opening hours as a precautionary measure:

• 157 Tesco stores in London, Liverpool and Bristol were either closed overnight or shortened their opening hours, while 26 of the stores ‘suffered varying degrees of damage’.

• 29 Sainsbury’s stores were affected throughout the riots by either looting or being forced to close early to prevent serious damage.

• Argos also had to close early as 18 of its branches had suffered various degrees of damage.

For those stores who rely on customers from outside their immediate area the reputational impact can be significant. Due to the news coverage many customers were simply too frightened to visit areas even if they were not directly impacted. As consumers take a negative view of the area, they prefer alternative locations for their needs. Therefore, the economic prospects of some areas are damaged. On the other hand, many other small shops in different unaffected locations claimed that they benefited from the riots as they now have more customers coming to their stores.

So now come the claims for compensation and insurance payouts. Unfortunately, for the vast majority of firms who have suffered indirectly it is much more difficult to quantify the value of the impact than for those who have lost stock. Why? Because whereas with lost stock, once it’s gone, it’s gone and you can prove how much you paid for it, with indirect effects you have to be able to prove two things:

• What might have happened if the disruption did not occur• What might happen after the disruption has endedIn our experience companies too often focus on the first of these

questions and mostly ignore the second. This is not surprising. The assumption that, without the disruption, revenues would have been the same as (or extrapolated from) last month’s revenue is broadly accepted. Dealing with what might happen after the disruption ends is much more complex as it relies on a combination of a series of factors.

There are 3 cases we see (figure below):• Recovery: The default assumption that after a certain time revenues

return to their previous level.• Never recover: The revenues stabilise but at a lower level than

previously. This can be due to customers having been forced to use other shops and then either getting used to them or perceiving the desirability or safety of an area as being damaged permanently.

• Self-compensating: Here, after the initial disruption, revenues actually increase, compensating for the lost revenue during the disruption, before falling back to normal levels. This initial rise is due to customers simply waiting until the disruption is over to go and buy what they have run out of, or which they always intended to buy anyway (and have no other choices).

Relying on accounting or actuarial approaches works well in the ‘recovery’ case. One only has to have a view on the length of the disruption and the depth of the short-term decrease in revenues (which can be determined by comparison to previous performance) to calculate the lost revenue. However, to understand the ‘never recover’ and ‘self-compensating’ cases one must take an approach that looks at the building blocks of revenue:

• What drives day-to-day demand – for food and groceries it’s how much might be left in customers’ fridges and cupboards, whereas for sports goods it’s branding and trends.

• The nature of competition – such as whether there are convenient alternatives for the same goods or whether the goods can be substituted from another supplier.

We have used relatively simple simulations of customer and competitor behaviour (developed in a day with small groups of executives) to gain insights into whether companies affected by different types of disruptions (from fire, flood and riots to the collapse of a major supplier or lender) are likely to recover, self-compensate or suffer a long-term reduction in revenues. This can provide more robust evidence on the indirect impact of disruptions on revenues and hence ensure claims are pitched at an appropriate level. q

• Dr Darrell Jaya-Ratnam is the founder of DIEMconsulting Ltd which specialises in helping firms generate evidence on the impact of different strategies and investments in order to gain stakeholder support and buy-in. He also lectures on Corporate Strategy at Birkbeck College of the University of London and at the Defence Academy on the Role of the Board. He has also written on business modelling in a number of corporate risk publications.

Different profiles of revenue after disruptions


Directors’ liability for wrongful trading - latest development

In the current economic climate many companies are struggling to survive and a lot of them are facing insolvency. Directors find themselves struggling to ensure the survival of their business,

yet they may be unaware that their actions might increase their own exposure to personal liability during a winding up with respect to ‘Wrongful Trading’.

In these cases the court has power, on the application of the liquidator, to declare that a person who is, or was, a director of the company, is to be liable to make a contribution to the company’s assets (Section 214 of the Insolvency Act 1986).

The offence occurs where the directors of a company continue to trade when they knew, or should have realised, that there was no reasonable prospect of the company avoiding insolvent liquidation.

The latest case of wrongful tradingIn Roberts (liquidator of Onslow Ditchling Limited (ODL)) v

Frohlich and Spanner [2011] EWHC 257 (Ch), the Liquidator sought a declaration against two directors seeking damages/fines or a contribution of assets from each director with respect to a deficit to creditors amounting to some £900,000.

ODL was incorporated as a special purpose vehicle to buy and develop a single site that had planning permission for 30 industrial units. The development was to be financed entirely with borrowed money.

ODL gave the building contractor a letter of intent and agreed to cover the cost of placing major orders. It took the risk that the bank’s funding conditions would be met, or relaxed, by the time it had to pay for the orders. Work got underway, but it proved impossible to agree a fixed contract price with the builder, added to which the anticipated pre-sales failed to materialise.

The bank’s facility was contingent on certain conditions, including a fixed-price contract with the builder, on a build-to-order basis. However there was no contract and a letter of intent reflected the intention of the parties not to enter into a fixed-price contract at all. Nevertheless, the bank honoured some of the initial costs but, when it was not satisfied with ODL’s compliance with the conditions, it refused to advance further funds.

The builder, upon realising that no payment would be forthcoming, suspended work and took the matter to adjudication, where it was awarded £1.6m. The directors then placed ODL into Administration. The land was sold leaving further significant liabilities owing to unsecured creditors.

The judgementMr Justice Norris stated that the directors knew they could not

fulfil the terms of the bank loan having informed the bank that ‘all pre-requisites were in place’, and without another source of funding the directors instructed the builders to undertake further development works amounting to more than £1m.

The court acknowledged that the directors’ decisions might have been justifiable provided there was interest from potential buyers and there was time to meet the funding conditions. However it was apparent that as soon as work commenced the company’s

insolvency had become inevitable.The judge considered the directors to have had ‘wilfully blind

optimism and a deliberate decision not to enquire or consider lest an unpalatable truth be exposed’ and found them guilty of:

Breach of Fiduciary Duty: To the company and its creditors since• they failed to act in ODL’s best interests by:• Instructing the contractor to undertake works knowing that ODL• had insufficient funding • Failing to obtain pre-sales, which was not only a funding• requirement but essential for the viability of the development• Failing to obtain supplementary funding to pay trade creditors• who were pressing for payment.

Liable of Wrongful Trading: The directors knew, or ought to have concluded that, from September 2004 there was no realistic prospect of avoiding insolvent liquidation. This was supported by the fact that ODL was both balance sheet and cash flow insolvent.

Misfeasance: The directors failed to exercise reasonable skill and care as, in the circumstances, no reasonable director would have continued with the development in light of the lack of pre-sales and funding issues.

Compensation by the directors will be decided at a subsequent hearing.

Minimising the risks of liabilityDirectors should act responsibly and with integrity, taking an

active role in monitoring the company’s financial performance. Advice taken by the board should be noted to show that it had reasonable grounds to believe insolvency could be avoided by continuing to trade. A court may be persuaded not make an order for wrongful trading if the directors can show that the steps taken were done with a view to minimising the potential loss to the company’s creditors

CommentOnce the directors reach a point where they know, or ought

reasonably to know, that it is unlikely that an insolvent liquidation can be avoided, they must seek professional advice to help eliminate the risk of committing the offence and do everything to minimise the loss to creditors. At this point the directors need to put the company’s creditors’ interests before those of its shareholders and avoid incurring further liabilities, to minimise a potential liability for wrongful trading.

• Norman Cowan, FCA, FABRP, MEWI, MCIArb, is partner in Wilder Coe LLP, Chartered Accountants, and acts as a Forensic Accountant as well as a Licensed Insolvency Practitioner. He is a member of NIFA (The Network of Independent Forensic Accountants). Email: [email protected], website www.wildercoe.co.uk, tel: 020 7724 2345. q

by NORMAN COWAN, FCA, FABRP, MEWI, MCIArb, partner at Wilder Coe LLP


Fraudulent trading– the forensic accountant’s roleSHAUN WALBRIDGE of Matrix Forensic considers Fraudulent Trading and the role of the Forensic Accountant

It is a recognised fact that when economic conditions are tough, the level of fraudulent trading by companies and their directors will increase. It is also a fact that in the lead up to the company going into liquidation,

the directors will quite possibly have removed the assets of the company, or made preferential payments or transactions at undervalue, all to the detriment of the company’s creditors.

In the case where there is suspected fraudulent trading, the challenge for the insolvency practitioner is being able to prove fraud for the purposes of section 213 of The Insolvency Act 1986.

What is fraudulent trading?Section 213 provides that if, in the case of a company's winding-up, it

appears that any company business has been carried on with intent to defraud its creditors or creditors of any other person, or for any fraudulent purpose, then the court may, on the liquidator's application, declare that any people who knowingly carried on the business in that way are to be liable to make such contributions (if any) to the company's assets as the court thinks proper.

It is because of the difficulty that arises in defining the ‘intent to defraud’ that actions under s.213 have been little used as a recovery tool in insolvency. Whilst there have been many cases over the years that have tackled the interpretation of fraud, it has been far from easy and has caused a great deal of inconsistency.

In general, the court may infer intent to defraud if a company continues to carry on business and continues to incur credit at a time when there is,

to the knowledge of the directors, no reasonable prospect of the creditors ever receiving payment of those debts. The words ‘defraud’ and ‘fraudulent purpose’ have been taken by the court to mean actual dishonesty and encompass real moral blame according to current notions of fair trading among commercial men.

In proving fraudulent trading, the dishonest element can be shown by the fact that the directors had no reason to think that funds would be available to make the payments. They do not have to intend or actually know that the payments will not be made (see R v Grantham [1984] 3 All ER 166).

Fraudulent trading claims are not limited to directors, as wrongful trading claims are under s.214. In the case of Grantham, a claim was also brought against the solicitors who had advised on the scheme. The solicitors reached a compromise by paying £75,000 as a contribution to the company’s assets.

In the more recent case of Walker (Liquidator of Jade Corporate Group of Companies Limited) v Mark Holt [2007] EWHC 3324 (ch); [2008] BCC 458, it was decided that the company’s accountants be ordered to pay ‘as a result of their knowledge of the fraudulent trades being undertaken by the company’ even though they were not physically involved.

The above cases serve as a cautionary tale for all corporate advisers, including of course solicitors, at least where the non-payment of the debt is likely to arise from the advice given.

The role of the forensic accountantDespite the inherent difficulties under s.213, it is arguably the case that the


best weapon the insolvency practitioner has in proving fraudulent trading is the services of a forensic accountant.

The forensic accountant is trained in preparing reports for use in actions before the courts and in giving evidence. Consequently they can be of greatest assistance to the insolvency practitioner as they are ideally placed to carry out an independent investigation into the company’s affairs and to help determine the reasons why the company became insolvent and whether the conduct of the company’s officers constituted fraudulent trading.

One of the great advantages to the forensic accountant investigating an allegation of fraudulent trading is that they are able to call upon the powers granted to the insolvency practitioner under The Insolvency Act 1986.

These powers provide the forensic accountant with an immensely powerful tool that they do not have when preparing an expert report. Under the Act, the insolvency practitioner is able to recover documents from the company, as well as being able to question the company’s directors, employees and suppliers. By definition, these powers are extended to the forensic accountant as his agent.

A further role for the forensic accountant is in assisting the liquidator to establish where the assets of the company have gone and how much could potentially be recovered for the benefit of the creditors.

Under section 236 of the Act, the insolvency practitioner (or the forensic accountant as his agent) has the right to demand information from the officers of the company about payments authorised by them prior to the

company going into liquidation. If the payment was not at arms length to a bona fide supplier, or to an officer of the company or an associate, the payment may be deemed to be preferential and can be recovered for the benefit of the creditors.

ConclusionIn the current economic climate, it is clear that recovering funds from

any knowing party greatly outweighs that of a remedy solely against the directors, especially bearing in mind that a liquidator’s duty is to the court and creditors. Therefore every avenue should be investigated to bring to account those who participate in fraudulent activities, both as a real deterrent to others and to ensure the best possible outcome for the victim of the fraudulent activities – the creditor.

As directors struggle to keep companies afloat as a result of the continuing recession, it is likely that there will be a substantial increase in company failures due to the fraudulent actions of directors.

The role of the forensic accountant as the lead fraud investigator in insolvent liquidations will become increasingly important in future fraudulent trading actions. q

• Shaun Walbridge is a Chartered Certified Accountant and has practiced as a forensic accountant and expert witness for 18 years. He is the director of Matrix Forensic who specialise in commercial and criminal matters. www.matrixforensic.co.uk.

B combination of increasing accidents and lessening of profits has resulted in an unacceptable increase in ‘Loss of Profits’ insurance claims.

With the riots earlier this year many of these claims will be valid. However, insurance companies are seeing these claims as opportunities for their clients to make inflated or false claims and so are investigating them in greater depth. As a result there is a potential increase in work for solicitors to argue the case with insurers for their clients.

One problem is that the primary documents are usually on the firm’s premises and so damaged/destroyed in the fire or flood. Unless the insured is properly accounting for the trading of the business and taking ‘backups’ offsite for storage, they will have major problems in proving their asset losses and trading levels.

Many accounting firms now offer daily or weekly backup support for their clients so that key data is easily accessible in the event of a disaster.

Access to this data may be the difference between a successful and unsuccessful claim. It will also show whether adequate control of stocks was being maintained and whether the stock levels were reasonable or questionable.

Firms should also have ‘Disaster Recovery’ procedures in place to minimise and mitigate the losses. Insurers will often review these procedures as part of their claim assessment and they can help to maximise the insurance claim. Indeed many firms do not survive fire or flood disasters and this is usually because they failed to produce and regularly review ‘Disaster Recovery’ procedures.

The belief that ‘it will not happen to me’ is too naive. I doubt whether the people of Tottenham or Croydon expected to see their small retail units burned to the ground, or the tenants to find themselves homeless and without belongings as a result of the fires caused by rioting.

Over the last 15 years we have developed a number of questionnaires and draft ‘Disaster Recovery’ procedures to help firms plan for losses due to fire, flood, loss of phones and broadband or temporary loss of access to their premises due to external circumstances beyond their control. q

Loss of profits claimsby DEREK WILLIAMSON of Goddards Chartered Accountants A


ADR – best solution when bothparties need each otherby BRIAN SIMS FCMI, QDRof Metis Print Consultancy Ltd

Generally, when a commercial dispute gets to the point where it needs some form of expert opinion, the relationship between supplier and client is under tremendous strain.

At this point the dynamic between these parties is adversarial and generally fuelled either by reputations being placed ‘on the line’ or legal posturing. If things have deteriorated this far it is possible that communication is primarily via solicitors with all the inefficiency with regard to problem solving that brings.

As any dispute progresses towards the court room, the amount of control either party has over it diminishes significantly. They are now bystanders to a gladiatorial fight to the death which they also happen to be paying for. Both parties need to resolve the issue and get on with life, but now they are just focused on winning the argument as to who is right or wrong.

In setting this scene a final point to accept is that very rarely will a capital equipment supplier remove or exchange a piece of equipment they have installed. The battlefield is notoriously strewn with statements such as ‘I will throw this in the car park’. But, in reality, the equipment is staying where it is and a solution is needed.

The issue for both parties is that each, albeit they will not concede the point, needs each other equally. The client has possibly invested tens or hundreds of thousands of pounds in new and technologically advanced equipment with which he needs assistance in running efficiently to provide a return on his investment. No supplier in this current economic climate can afford either to lose a customer or have the potential for bad publicity, possibly affecting future sales. Both have sound reasons for sorting the dispute out.

Whilst Alternative Dispute Resolution (ADR) has been a recommendation as far back as 1996, with the report produced by Lord Woolf to modernize court procedure, it is still not widely adopted as a method to pro-actively resolve a dispute.

Mediation, the most common method of ADR, is becoming more and more common as parties are being pressed to resolve issues prior to the commencement of proceedings. However, mediation, either by recommendation via legal advocate or court appointment, can still be seen by some as ‘something to go through’ prior to your day in court.

Given the extremely difficult trading environment, a number of suppliers are now turning to ADR before they ‘lose control’ of the situation with the appointment of legal representation. As was stated

earlier, as the dispute heads towards court, you release control and become just part of a process rather than actively resolving the dispute.

By being proactive, by taking this alternative route, each party retains total control of the situation and can significantly reduce the likelihood for the costly route of legal action. Remember even if you win your ‘day in court’ you are only likely to recover 70% of your direct costs and none of the indirect costs such as management time required in preparing the case.

The key point of ADR is that it is private, non-adversarial and doesn’t look to point the finger of blame in the way a highly public court case does. Also, you would enter into ADR if you want to retain a relationship with the other party, as finding a solution you both can live with can generally strengthen the relationship. It should be an alarmingly obvious course of action given all of the advantages and more and more companies are adopting it to resolve disputes.

Recall the statement made earlier – both parties need each other. Finding a solution via ADR gives this opportunity to rebalance the relationship and allow each party to move forward.

Mediation doesn’t need any expert opinion to make it affective. The process is designed to get a solution to a dispute, no matter how complex, within four to eight hours and 90% of mediations reach a solution that ‘both parties can live with’ – meaning they can move on. However, if the dispute is complex and the mediator is an expert in the field of the dispute, it can help build trust, rapport and confidence and facilitate a trusted solution quicker.

Conciliation differs from mediation in as much as a Mediator doesn’t contribute to a solution, merely acts as a catalyst. With conciliation the neutral third party can, and invariably does, make a recommendation. In this case an expert opinion can be extremely useful if not essential in technical disputes.

Regardless of which type of ADR is taken, it is a powerful tool to bring about both a very cost effective and quick resolution to a dispute. It focuses both parties on what is important – not winning an argument but resolving a problem to mutual gain. It also strives to create the foundation to rebuild a damaged client/customer relationship and hopefully bring about a stronger and robust association for the future. q


Expert Witnesses need to understand significance in assessing ‘setting’by MICHAEL DAWSON of CgMs Consulting

English Heritage’s guidance on the management of change within the setting of heritage assets was published in October 2011.

Key elements of the guidance are the definition of setting. This adds to the government’s Planning Policy Statement 5: Planning for the Historic Environment, stating that setting can embrace all surroundings – land, sea, structures and skyline – which can be experienced from or within the setting of a heritage asset. It is not a fixed entity that can be definitively and permanently defined in plan or within a set distance from an asset. The key principles for understanding setting are the surroundings in which a heritage asset is experienced. All assets have a setting, including buried remains. Elements of the setting may make a positive, negative or neutral contribution to the significance of an asset and, whilst setting is often described in visual terms, it can include factors like noise, smell, dust and historic associations between heritage assets. Setting is usually more extensive than curtilage, and distinct from historic character and context. Setting can enhance a heritage asset, whether it was designed to or not, and the contribution that setting makes to the significance of a heritage asset is not dependent on public access.

The setting of a heritage asset can change with time. However, a point not in the guidance is that, at the point of assessment, setting is fixed and forms the baseline for assessment. Where the surroundings of a heritage asset are relatively unaltered from when the asset was

first constructed, the contribution of the setting to it’s significance may be higher than where the setting has changed. However, change can enhance significance.

Setting is not a heritage asset or designation. However, designed settings, such as a landscape park around a house, may also be heritage assets and themselves have a setting. Importantly, protecting setting need not prevent change.

The guidance sets out a 5 stage process for assessing the implications of development on setting. The first is the identification of assets likely to be affected. Critically, if a development is capable of affecting the contribution the setting makes to the significance, or the appreciation of the significance, it can be considered to fall within the asset’s setting. The key test is the effect on the significance of the heritage asset. Though development may be visible from or within the setting it does not automatically mean that it results in harm. However, the potential effect on setting needs to be assessed, and local planning authorities should have regard to the scale of assessment required.

Secondly, assessment must consider what contribution setting makes to the significance of an asset. Thirdly, identification of the range of effects development may have on setting should be followed by an evaluation of the degree of harm or benefit to the significance of the heritage asset. Fourthly, an attempt should be made to maximise enhancement or reduce harm to setting through design. Reducing harm could include relocation, changes in layout or screening. Where harm cannot be eliminated, design quality may be one of the main factors in assessing the balance of harm and benefit. Finally, because of differences between the importance of heritage assets and the contribution that setting makes to significance, decision making has to be considered on a case by case basis.

The guidance reiterates PPS5 - where developments affecting setting result in ‘substantial’ harm to significance, this harm can only be justified if the developments deliver substantial public benefit and if there is no other alternative such as redesign or relocation.

Due to the complexities of setting, it is important to have specialist heritage advisors who understand how proposed development may impact upon heritage assets, their setting and the degree to which the impact is significant or not. CgMs has a reputation for providing commercially aware advice on the heritage implications of proposed developments. q


The timetable for preparing the Experts’ Joint Statement and Expert’s Reports

When an expert is appointed in a construction dispute an important part of the role is to:

a. Produce, in collaboration with the opposing expert, a Joint Statementsetting out those matters which are agreed and those which are not,briefly stating why.b. Produce an expert’s report on matters not agreed in the JointStatement, elaborating on the reasons for differences as appropriate.

The Joint Statement and reports are served in accordance with a timetable ordered by the Court or Tribunal. The problem with such timetables is that they invariably ignore the practicalities of producing Joint Statements and reports when experts of different disciplines are involved.

Orders are typically issued requiring the engineering and quantum Joint Statements and subsequent reports to be served concurrently. This has the following difficulties:

a. When the quantum experts prepare their Joint Statement it is oftenwithout sight or knowledge of the precise content of the engineeringJoint Statement. This is because the engineering experts are likely to beconsidering their Joint Statement up to the moment of being served. Itherefore find it necessary to include the following note in the quantumJoint Statement: “The quantum experts have not seen the signedengineering Joint Statement at the time of signing this Joint Statement”b. As a consequence of item (a) it is not always possible to properlyrespond to the content of the engineering Joint Statement, therebycreating uncertainty.c. The potential for this uncertainty equally applies when preparing theexperts’ quantum reports.

How can this situation be avoided?The timetable should, in my view, appreciate the reliance that

one expert places on the other. The illustration I provide below is for engineering and quantum, however it could equally apply to planning and quantum.

a. The engineering experts serve a Joint Statement, which may includean agreed engineering solution or alternatives which each expertproposes.b. The quantum experts serve a Joint Statement, two weeks later,agreeing figures-as-figures for the engineering solution(s), subject toissues of law and liability.c. The engineering experts each serve their reports at the same time as(b) above. d. The quantum experts each serve their reports, two weeks later,elaborating on the issues in their Joint Statement as appropriate andalso addressing the engineering reports. This is because the engineeringexperts may in their reports have refined and/or altered the position(s)contained in their Joint Statements.

The above sequential timetable would extend a concurrent timetable by some 4 weeks and this period would be increased further if supplemental Joint Statements and/or reports were served. Nonetheless, the suggested approach would have the following benefits:

a. A suite of experts’ documents that were complementary.b. Allow cross-referencing between documents, making them moreuser-friendly. c. Have the potential to avoid, or at least diminish, the need for asupplementary quantum report.

The parties and their legal team could, of course, agree to such a sequential timetable themselves and a Consent Order could be issued accordingly by the judge or arbitrators.

Perhaps the experts’ timetable should be given more thought, whilst always balancing the availability of the judge or arbitrator for a trial or hearing, since the advantages suggested above can only benefit the process and provide a greater degree of clarity. q

by RICHARD WALMSLEY of Gardiner & Theobald Fairway Limited

A construction dispute often requires the involvement of experts of different disciplines, such as engineering and quantum. The

engineering expert will consider technical issues and the quantum expert the monetary consequences. It follows that the quantum expert relies on the opinion of the engineering expert. In such circumstances the concurrent exchange of the experts’ Joint Statements and their subsequent reports, which is typically the approach adopted, can create significant problems for the experts. Richard Walmsley, an experienced quantum expert and adjudicator, discusses these problems and suggests how they might be overcome to assist those involved in the process, particularly the Court or Tribunal.


When is ‘reasonable’ reasonable??by ROY ILOTT, Chartered Building Surveyor

I would suggest that these are questions which can never be answered with the clarity we would prefer. When did we last

have a reasoned reasonable debate, except perhaps at college, on whether reasonable is an unreasonable quality standard? It is the basis of many legal disputes, but as expert witnesses is there a common datum? Presumasbly, as we are instructed as expert witnesses when a dispute has occurred, the last adjective which the contending parties will use of the other is ‘reasonable’. So, are there any dispute situations where it is appropriate to assume that a reasonable agreement can be achieved on the interpretation of specification clauses such as:

• To the reasonable satisfaction of the• contract administrator• Work must be carried out to the quality to• be expected from a reasonable contractor• or a reasonably competent person• That the materials are to be to the• architect’s reasonable satisfaction• That the finish is to reasonably match the• existing • Reasonable access is to be provided.How many contracts have you been asked

to review where the work is described as being to a ‘reasonable standard’? How was the standard of workmanship to be determined or managed under such a specification? What did the parties expect? At the time they will have believed that the expression had a clear meaning. Leases may state that the repairs are to be carried out to the ‘reasonable satisfaction of the lessor’s surveyor’. We are to be ‘reasonably competent surveyors’, exercising the skill to be reasonably expected of… and so on.

The dictionary definitions of ‘reasonable’ are: (1) showing reason or sound judgement (2) having the ability to reason (3) having modest or moderate expectations (4) moderate in price (5) fair, average.

Usually when such matters end up before the Courts or Tribunals we can leave the final decision to the judiciary. However when asked to comment as a Single Joint Expert, it appears that we have to make a decision

at the start as to the appropriate general standard, so that we can then advise and report on the range of opinions which may be appropriate under our duties to CPR part 35. I suggest that we should first ascertain the appropriate quality benchmark, and then advise how and where the workmanship or service provided, extends above or below such a datum or benchmark.

In the decision in Proudfoot v Hart (1890) Lopez LJ said that “the meaning of ‘good tenantable repair’ appeared to mean such repair as, having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it”. This has set the standard of appropriate repair for many years, by setting out the markers against which the absolute is to be interpreted in the specific.

This is probably a good starting point, but raises interesting relative judgements where an old building has moved into a ‘better residential’ band. Thus if the original brickwork was fairly consistent but the mortar joints were not particularly plumb, true or level, and the area has improved, should the brickwork be consistent with the original structurally adequate brick bonding, or is it of a lower level of accuracy than would now be anticipated for such a location. The specified standard becomes clearer if the clause says the work is to match the existing.

However, where the stated standard is ‘to match the existing brickwork’, does that mean that if the original wall has mortar splashes and the joints are not clean, that the new wall is also to be finished to that standard? Is it appropriate to claim that this relevant quality statement is only relating to the brick colour and texture, but the quality of workmanship should be of the current standard which would be expected to reflect the area and quality of the building at the time it is being constructed?

On a general decorating contract one is unlikely to achieve the standard of finish illustrated in a paint manufacturer’s

Was the brickwork reasonable? Did the contractor proceed with reasonable diligence? Did the employer give unreasonable variations? Were the costs for the variations reasonable?...etc, etc.

catalogue where a dust free surface is shown! We do know that this is achievable, but whilst it may be reasonable for a display feature, a high quality residential redecoration or a prestigious office reception area, it is unlikely to be the reasonable finish to expect within a school classroom, a housing association refurbishment or a speculative housing new build. It is certainly unlikely to be appropriate for a commercial refurbishment.

Thus it appears that the definition ‘reasonable’ should be assessed with the supplementary and qualifying adjective of ‘appropriate’. Does the benchmark thus become the standard which is reasonable and appropriate? This automatically implies the relevance of the use, history and location of the building to the quality of work which is being specified and ordered, and brings us back to the decision in Proudfoot v Hart.

I would suggest that one criteria which cannot be accepted as part of the definition, is the price being charged for the work. Thus, just because one contractor submits a lower price than their competitors, that does not warrant the delivery of a lower standard of work on the basis that ‘you get what you pay for’. The standard of materials, fittings and finishes should be quantifiable against a benchmark outside that of price. In an ideal world there should be absolute definitions and benchmarks, whether in the quality of building contracts, delivery of professional standards or social behaviour. Unfortunately all of these are assessed against ever changing criteria and standards, and perhaps a contractual equivalent of The Ten Commandments would be useful, but probably just as contentious!

I think that this is a subject on which we can expect to be discussing and submitting reports in disputes as expert witnesses, well into the future, particularly where instructions are as Single Joint Experts. Regardless of the issues, our responsibility remains that of setting out our reasoned opinion and stating any variations from that opinion. q


Everyone’s an expert– or are they?by R. APPLEYARD MSc BSc(Hons) FRICS FCIArb MCIOB MEWI,Chartered Building Surveyor

It may sound obvious, but the first step in picking an expert is to ask ‘does he or she know the subject matter?’ A bit of hands on experience and industry knowledge is all very well but an expert

surely needs more than that – and yes, they do much, much more.There are plenty of bar room solicitors about and there are just as

many bar room experts. They know it all, that is until it goes wrong and they then admit that they know about as much as you do. By that time it is too late and the scene is set. Just remember you get what you pay for, nothing more nothing less. A good expert, no matter what discipline, is worth his weight in gold.

Find yourself an expert who is known to be fair and open, someone who has worked in the dispute arena for some time in the discipline you are interested in. Ask about previous clients, if possible get references. Good work of this nature always has supporters, even from those that were on the other side so to speak. Only an expert who maintains his impartiality is worth his salt, no matter who the client is or how much money they have.

Experts are required by law to abide by certain legal requirements and codes of practice. The principal requirement is the Civil Procedure Rules and its 2009 and 2010 amendments, better known as ‘CPR’. All legal directives say the same – that it does not matter who pays the bill, the evidence shall be the same. The expert’s first duty is to the courts, and shame on anyone who steps outside that criteria, as they will be subject to the wrath of the courts. This used to be known as the Ikerian Reefer Principle after a high profile case that went all the way to the Lords. Now it is referred to simply as ‘Part 35’. So don’t be offended if they say no to certain requests, they know that you are there to do the best for your client, however there are some lines that should not be crossed and, if you make them, you may regret it at a crucial moment in the case.

Next, look to see if they are members of, and governed by, a professional body – The Royal Institution of Chartered Surveyors and the Chartered Institute of Building are two that spring to mind. Then, to a lesser extent, the Expert Witness Institute, Academy of Experts or Society of Expert Witnesses – all of whom have professional conduct requirements. Unfortunately, however good they are in an emergency, the AA or RAC do not count. Neither do trade bodies as they have a conflict of interest that will cause problems in court.

Now look at training and academic qualifications. All professionals are trained and so should your expert be – remember you are going to pay this person a lot of money for their expertise.

Academic qualifications mean more that just having 20 years in the trade, they indicate that your expert is capable and stays on top of his discipline. Experts are not worth a jot if they cannot produce a clear, concise, court compliant report that can be read by a judge. So, it is not just discipline training that is important but also training in being an expert witness. Beware of an expert that goes off on a frolic and throws all but the kitchen sink into a report. They should consult with you, ask what supporting documents you may require and how much detail is needed. The largest culprit is the construction industry – we write reports full of jargon and technical details which can often send an insomniac to sleep, let alone a judge!

From this you will understand that to be brief is definitely not good, but to be detailed can be just as bad. Make sure that you instruct correctly. It is no good not knowing what you don’t want until you get it. It makes for a poor relationship with your chosen expert.

Last, but not least, your expert will ask you to sign their terms and conditions. All the experts I know that are any good have these and will not move a muscle on an instruction until they have been signed. Also do not be surprised if they ask for a deposit up front as this is getting more and more common.

No mention of cost, I hear you say! Well, good experts never give fixed costs as it restricts their report – which is what you are paying for. I often suggest setting a budget and, when it gets near the top end, discuss where the money needs to be spent.

This article is very much biased to the courtroom environment but more and more we are seeing experts used in the other forms of ADR. Make sure you are up to date with all forms of mediation. I am seeing more and more enquiries from parties looking to go either to arbitration or adjudication.The rules are slightly different but for the expert witness the onus is just the same. q

• Rod Appleyard works as a fenestration and building envelope expert with many years experience both in the industry and in dispute resolution. He is a Chartered Building Surveyor, Fellow of the Royal Institution of Chartered Surveyors and a Fellow of the Chartered Institute of Arbitrators. He practices as an Adjudicator and Arbitrator along with his work as an independent expert surveyor to the construction and fenestration industry. He can be reached on either 01274 569912 or 07785 232934.


Which service do you require?

Data recovery, digital forensics and e-discovery – are these terms synonymous? The frequency with

which we receive calls for a ‘data recovery’ when the customer actually requires a forensic investigation, led me to write this article in order to clarify the differences between the services. What do each of the terms mean and which service do you actually require?

The similarities:• All three services deal with bits and bytes• – ones and zeros• All three services involve digital media such• as hard disk drives, compact disks (CDs),• digital versatile disks (DVDs), USB flash (or• thumb drives), media / memory cards, mobile• phones and tapes• Some of the processes employed may be the• same but the results can be very different.

Data RecoveryThere is an old saying in data recovery that

there are two types of hard disk drives – those that have failed and those that will fail. Data recovery is concerned with those that have failed.

Failed computer media falls into two categories – physically damaged and logically damaged.

Physical damage can be caused by the media being dropped or knocked, or a component such as the heads may fail. Logical damage may result from software or firmware corruption.

Data recovery is the process of retrieving the data from the failed computer media. There are no set procedures for data recovery and, unless the data recovery company is made aware that a forensic data recovery is required, the processes and procedures used may not be forensically sound and the data recovered may not be admissible in court.

Digital ForensicsDigital forensics (also known as e-Forensics,

computer investigations or computer / mobile phone forensics) is the methodical investigation of digital media to determine whether illegal or unauthorised activity may have occurred and presentation of evidence of the same to the court.

Forensic examinations are conducted in accordance with the ACPO Good Practice Guide for Computer-Based Electronic Evidence and, whilst occasionally the digital investigator will be looking at damaged media, more usually it is serviceable media.

The investigator will usually follow the standard digital process of acquisition (of the target media – imaging), analysis of the data (who, what, when, where and how) and reporting their findings.

e-Discoverye-Discovery is an initial phase of litigation

where the parties in a dispute are required to provide each other with relevant electronic information and records. e-Discovery applications and technology enable the relevant corporate digital information to be collected in a forensically sound manner, de-duplicated, reviewed and produced. However, due to the volume of information often involved this can be a time consuming and expensive process. q

by MARTIN GIBBS MBE, Director of Griffin Forensics Ltd


Cell site analysis – myths, lies and the truth

Rapid Turn-Around of Mobile Phone andComputer Evidence

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by D A Sykes BSc. C.Eng. CITP MIET FAE MEWI, Senior Partner at IT Group

Mobile phones are now disposable items and no section of the community exploits this more than today’s modern criminal. Their modus operandi is invariably the same – pay-as-you-go, un-

registered and usually destroyed within a week of purchase or immediately after the crime.

Despite all these apparent benefits however, the modern day criminal is still faced with a number of problems. They either telephone friends and family, associates and fellow criminals to tell them the mobile phone number for this week or the near future or they get around this by carrying a ‘clean’ mobile phone that is solely used for friends and family, keeping criminal activity to the disposable ‘dirty’ mobile phone.

Increasingly, reliance is made by the prosecution on telephone evidence and the focus, when the handset has gone missing, is typically on ‘attribution’ which is the process of working out who was using a particular mobile phone, and therefore who made and received the calls, in the records held by the service provider.

Closely related to the process of attribution is the branch of forensic telecommunications that deals with geographic positioning analysis. This is commonly called cell site analysis due to the basic data being derived from the position of the mobile phone mast (cell site) that handled a call or a series of calls. Through careful measurement of cell site coverage and analysis of other adjacent cells, opinions can be formed on the whereabouts of a person operating a mobile phone.

The prosecution will often review call data records to establish common numbers and the friends and family calls from a clean phone and then, using cell site analysis of this clean phone, they will attempt to establish if the dirty phone was in the same geographic location.

We are starting to see prosecution reports that suggest that because two phones are cell sited in the same geographic location that it is ‘likely’ that they are in the hands of the same individual.

These suggestions are worrying. Cell siting is only completely reliable when used to establish where a person was not located rather than where they were located. This is because, in theory, a mobile phone can be up to 35 kilometres from the serving cell. In reality, the cell site normally selected to handle a call will be much closer than this theoretical maximum and in major cities is usually likely to be no more than a few hundred meters away. In suburban districts, 4-5 kilometres is more likely. But these broad rules cannot be relied on in all circumstances and any meaningful location derived simply by conducting a desk-based exercise from the call data records has to be heavily qualified to stand scrutiny.

As part of the preparation of the defence case, we at IT Group always recommend an onsite measurement of the cell sites with the correct instruments and trained engineers. This establishes whether a particular cell has a directional antenna, is limited in range or possibly has an unusually high range. Specific tests establish whether or not it is possible to make or receive a call at a particular location and to be served by the cell site being analysed. We present our reports in plain English with a heavy reliance on maps that we generate individually to set out in clear terms where a mobile phone could have been and more importantly where it could not.

With practically every case we are instructed in we identify anomalies in cell site ranges and in the analysis undertaken by the prosecution. On occasions we have confirmed an alibi that may

initially have been discounted by the prosecution.

Recent case study from IT Group UK LimitedIn March of this year, IT Group received instructions to conduct cell site

analysis of a Blackberry® mobile device. The phone belonged to a man accused of an assault in a local town, who had been identified by a police officer as leaving the crime scene. IT Group was asked to conduct cell site analysis of the phone in order to provide evidence that the defendant was in fact not in the area at the time of the offence.

IT Group experts looked at cell site activity related to the phone number belonging to the device and, with the use of specialist network monitoring equipment, they carried out measurement analysis of geographical areas

and provided their findings through an in-depth report, geographical diagrams and call data records.

Upon conducting the cell site analysis, IT Group experts could report on the mobile phone and the defendant’s location - even though the phone was not used around the time of the offence. The nature of the Blackberry® service is that it is always connected to the network to enable data services (e.g. email and Internet) - the connection uses similar cell sites to those seen in mobile phone call data records and in turn they are recorded by the network, along with the latitude and longitude of the cell’s location with a postcode. This allowed IT Group to provide a clear indication of the mobile phone’s whereabouts.

IT Group’s report found that the defendant was likely to have been in the area of his girlfriend’s house and then later at his own home – a significant distance from the crime scene at the time of the offence. The cell site reports were also consistent with the statement by the defendant that he was travelling some distance from the crime scene. They showed that specific cell site ID’s in the area of the crime scene did not appear in the data records of the handset used by the defendant. IT Group experts expanded the time frame around the time of the offence and could show that the device had been connected to the cell ID earlier in the evening, thereby demonstrating that it was likely that the cell site was in service on that day, further supporting the defendant’s alibi.

On presentation of IT Group’s expert report, the charges were dropped. q

• IT Group are leading specialists in IT and telecommunications systems with complimentary expertise in electronics and electrical engineering. The company has over 20 years experience in providing a broad range of consultancy services including due diligence, business process review, QA audit, Insurance assessment, forensic IT / telecoms / Electrical systems examination and expert witness services. www.itgroup-uk.com.


Veterinary legal workby ROGER BLOWEY BSc, BVSc, FRCVS, FRAgS

I suspect that, for many people, animal health issues are an unusual area. However, increasing numbers of farmers are either suing their suppliers for allegedly selling them faulty goods or are being prosecuted for Animal

Welfare offences. The purpose of this article is to give an indication of some of the areas of dispute and some of the difficulties that are experienced in reaching a conclusion.

Welfare prosecutionsDespite concern in the media of welfare issues in large livestock units,

most of the animal welfare prosecutions with which I have been involved tend to be in smaller units and sometimes in traditional and under-financed enterprises. In my opinion there is considerable confusion between large livestock enterprises and intensive livestock enterprises. For example, the large dairy farm planned by Nocton Dairies in Leicestershire and the mega-pig farm planned by Midland Pigs are both, in my opinion, examples of large livestock units.They need not be particularly intensive and, in fact, the dairy unit planned was certainly not intensive. It was intended that the animals should be given large amounts of space and many features for the improvement of animal welfare had been incorporated. Examples of intensive units are where animals are kept very tightly stocked, possibly in tiered cages or for pigs in stalls and tethers which are, of course, banned in the UK but still in use on mainland Europe.

Most welfare prosecutions are brought by either Trading Standards or the RSPCA. Common areas of concern are lack of water, lack of food, lack of a clean dry lying area and unnecessary suffering. All these areas are quite difficult to define and anyone, whether prosecuting or defending, needs to have examined the evidence very carefully. Even the legislation is often not entirely clear. Changes in the legislation occurred in the Animal Welfare Act 2006, where it is now an offence to put an animal in a situation where it might be caused unnecessary suffering. In relation to the supply of water, the UK regulations require that animals of all ages be given continuous access to fresh, clean drinking water. But does continuous access mean that water is available all the time, or simply available when the animal is thirsty? What is the definition of ‘clean’? The EU legislation, from which UK legislation is derived, is ambivalent about animals under two weeks old, and those which are suckling milk from their mothers. EU legislation requires that only animals over two weeks old should have access to a continuous supply of drinking water.

Similar considerations apply to a clean, dry lying area. Often the prosecution evidence shows pictures of animals standing in an extremely dirty area and yet the animals themselves have very clean coats, especially along the belly and flanks. If this is the case, then they must have a clean, dry lying area somewhere, but it is simply not shown in the evidence presented. Probably the greatest difficulty comes from the definition of

‘unnecessary suffering’. The regulations require that sick animals should be identified and treated and then, if there is no response, the person responsible for the animal should either call the vet or cull. However, treatment of livestock has changed enormously in the past 20 years. At one stage it would have been normal for most livestock owners to call the vet to a sick animal. Now, on large livestock units especially, the herdsmen have so much experience that it is unlikely they would call in a vet other than to examine animals after an outbreak of a new disease, or if an animal is showing unusual clinical signs. Farmers themselves carry out more diagnoses and treatments, including the treatment of lame cows. In addition, a situation may be reached where an animal has responded to treatment but has not fully recovered and the case revolves around establishing whether or not the animal should be retained. Take the example of a lame cow. The lameness may have been identified and treated, but the animal has not fully responded and remains lame. Should the farmer call the vet, cull the animal or retain it in the herd, and what criteria should he use to come to a decision that is acceptable in terms of animal welfare? The criteria that I would use would be:

• Is she in reasonable body condition?• Is she producing on a par with her herd mates – in terms of milk• production, for example?• Is she able to compete with her peer group?For example, if the chronically lame animal is in a small group hospital pen

straw yard, is in good body condition and is milking well, then it would be my opinion that she does not need to be culled. An issue arises over whether the livestock owner should have requested a veterinary examination. The only way in which this can be proven is to know the diagnosis and yet often, in welfare prosecutions, the actual cause of the lameness is, surprisingly, not established.

Animal health disputesDisputes most commonly arise with the suppliers of goods or services.

Examples include feed suppliers, where the delivery of a batch of food has allegedly caused adverse health effects: milking machine suppliers, where the installation of a milking plant has allegedly damaged the cows leading to an increase in mastitis: stress on the animals such as poorly designed buildings or noise from construction: and finally allegedly defective advice, for example from the nutritionist or animal health adviser.

The consequences of any of the above will not be a single, straightforward issue. In dairy herds the consequences of the alleged event is often an increase in diseases such as mastitis and lameness, a decrease in milk yield and milk quality or a deterioration in fertility. There are, of course, no controls – it is not possible to compare those cows subjected to the alleged adverse condition with cows that have not been subjected to the same event. The only option is to compare herd performance for one or two years prior to the event, during the event and for one or two years after it. Even this is fraught with difficulty, because the performance of the herd varies enormously with a range of other factors such as environmental conditions, weather, change of herdsman and level of yield. For example, as yield increases there is a tendency for diseases such as mastitis and lameness to increase also. The expert chosen to assess these cases therefore needs to have a very good understanding of all aspects of farming. The examples I have given apply to dairy units, but I have dealt with similar situations with pigs, poultry and sheep.

ConclusionsLike most areas of dispute and litigation, what initially seems a straight

forward case might require a much more detailed examination. Nothing biological is certain, and in animal health and veterinary medicine the consequences of any defective action or product cannot be predicted accurately. As always, the litigant needs to be sure that they have sought the correct advice. q


Blowfly strike in sheep: nature or neglect?by PETER BATES, Ph.D. MSB. C.Biol. FRES – Veterinary Entomologist

As discussed in a previous article in Your Expert Witness forensic entomology can be applied to animal health and welfare. Under the Animal Welfare Act (2006) it is an offence to cause unnecessary

suffering to any animal. Reasonable steps must be taken to ensure that an animal’s needs are continually met and this includes protection against pain, injury, suffering and disease, including those caused by external parasites, particularly ovine mange (sheep scab) and traumatic myiasis. In addition Codes of Recommendations for the welfare of animals are also produced and, although not statutory, farmers are required to ensure that all those attending to their livestock have access to the relevant Codes for the species farmed. Although the main aims of the Codes are to encourage adoption of high standards of husbandry, they may also be relied on by the prosecution to establish guilt.

Myiasis is the invasion of living tissue by larvae (maggots) of the true flies (Diptera). Most warm-blooded animals can suffer myiasis – including humans! Sheep myiasis (blowfly strike) is a widespread problem throughout the UK with the principal cause being the common green-bottle (Lucilia sericata). Strike is of economic significance, but more importantly it is a

major sheep welfare problem with clinical signs ranging from local discomfort and irritation in smaller lesions, to serious loss of condition, debility and death as infestations progress. The Code of Recommendations for sheep emphasise the flockowner/keeper’s responsibility to prevent and control strike. Effective chemical treatments are available and consequently failure to control strike can lead to prosecution for animal cruelty. However, proving neglect or ‘unnecessary suffering’ as opposed to the natural epidemiology of the parasite in such cases is difficult. Having a struck sheep is not a crime – the crime is not doing anything about it!

Flies generally deposit eggs on soiled areas of fleece. Larvae crawl to the skin which they lacerate and digest using their hooked mouthparts and proteolytic enzymes. The lesion appears as a foul smelling area of moist brown wool, attracting further flies and, if unchecked, extensive infestations can result in an agonising death. The Welfare Code states that flockowners should observe their flocks for signs of strike at least twice a day, particularly during the ‘fly season’ (between March and December in south east England). Looking for struck animals is time consuming as care should be taken to observe all sheep thoroughly. Sheep can be struck even in the best managed flocks, but prophylactic treatment combined with careful monitoring of the flock on a regular basis will prevent strikes progressing. Clinical signs only appear after the larvae moult into the second stage and begin penetrating live tissue. This will be at least 24 hours after the eggs were laid and thus the larvae are at over one third of their development before even the most experienced shepherd suspects strike.

Preventative treatments include plunge dipping in organophosphate (OP) wash (expensive, time consuming and a potential health hazard) or products containing the synthetic pyrethroids (SP’s) or the insect growth regulators (IGR’s), administered as pour-on (backline) treatments. These products bind with the wool/skin grease, eventually covering the whole sheep in 24 hours as the grease moves naturally around the body. Once administered, products have varying periods of protection against strike. Dipping in an OP will provide at least 20 weeks protection, IGR pour-ons 8 to 16 weeks and SP pour-ons 8 weeks protection. Pour-ons must be administered by the correct equipment, specified by the manufacturer. The product must also be administered over the back, evenly distributed either side of the backbone. Too much over one side will result in higher concentrations of product moving down that side of the animal, leaving the other side with relatively less product and therefore less protection against strike. Preventative treatment is no excuse for not continuing flock observations. Treatments decrease in efficacy with time and there is no guarantee once the claimed period of protection has elapsed. More importantly, treatments only provide 95% protection against strike during their claimed protection periods and thus 5 sheep in 100 are still susceptible even after effective administration to the whole flock.

The prevalence of blowfly strike is weather dependent, the majority of cases occurring during periods of high humidity or warm periods after heavy rain. First stage larvae require fleece moisture above 70% for at least 14 hours in order to develop. Eggs are laid on sheep throughout the fly season, but will only develop if the fleece moisture is optimal. This may prolong the perceived protection of a product, however significant rainfall after elapse of the protective period will lead to a strike ‘storm’. Once one animal is struck it must be treated without delay and it is time to administer another protective treatment to the whole flock. Failure to act is indeed a crime! q


Closure of the Forensic Science Service - what will it mean for my clients?

As you are all no doubt aware, the government announced the closure of the Forensic Science Service in December 2010. The closure is proceeding, with a view to complete

closure being achieved by the end of March 2012. Laboratories in Chepstow, Chorley and Birmingham have already closed and those in Huntingdon, Wetherby and the FSS headquarters in Solihull are due to follow shortly. The London laboratory is also to close with the building reverting to the Metropolitan Police.

Following an outcry, the archive of old case files and recovered materials has now been safeguarded, but what of the rest of the science?

There was undoubtedly an assumption that a large proportion of the scientific staff and expertise would be transferred to the private sector and to an extent this has been borne out in practice. However, there are a significant number of staff who have chosen not to transfer to the new forensic science providers, due to the lack of suitable jobs or an inability/unwillingness to relocate to a different area of the country. Whilst the loss of the staff and their expertise is lamentable, we must also ask what impact might there be on the provision of a ‘fit for purpose’ judicial system?

The overall amount of money available for forensic science provision is being forced downwards by drops in police budgets and restrictions on legal aid. It follows that less crime will be investigated and that the

by Hayward Associates

money spent per case will be reduced, leading to a reduction in the amount of ‘science’ that can be deployed on a case, or cases being done ‘for a price’. This, coupled with the rise in the number of forensic science providers, is increasing the risk that cases will not be investigated properly and results may not be interpreted properly. There is a real risk that miscarriages of justice will occur.

Scientific investigations in the larger and more serious cases might be spread amongst several different forensic providers. Who will ensure that each provider gets access to the exhibits at the correct point in the examination process? Who will collate all of the results obtained, and will they appreciate the overall significance of the findings?

The new providers are tending to recruit a significant number of this staff from recent graduates which is no bad thing when it comes to reducing costs. However, what about the effects of a lack of expertise within the organisations themselves? Forensic science relies on knowledge gained from real-world cases and not theoretical examples. There is a potential deskilling of future forensic scientists simply because there are too few senior staff and they do not actually have the necessary breadth of experience to pass on to their new recruits.

A cynic might say that the whole privatisation process appears to have been fixed to ensure that there are a certain number of private forensic science providers in the marketplace. Why are tenders offered to companies on the understanding that they perform the work in-house, but the same companies are allowed to subcontract the work to competitors without anyone seeming to consider it a cause for alarm? Why are companies who fail to meet the conditions of the tenders they have already won actually allowed to tender for other tranches of work?

There is also talk of a move towards the main findings in a case being reported as factual results without interpretation by the scientist. The court will then be presented with the findings and expected to draw the correct interpretations from them. With the best will in the world, could a juror appreciate the significance of finding 20 blue cotton fibres on a garment rather than the same number of red flock fibres? Is finding two white paint fragments on the clothing of a suspected burglar significant?

The courts need to be aware of potential shortcomings or ambiguities in the scientific information provided to them. With this in mind, you should give serious consideration to having the prosecution work reviewed by independent experts prior to trial. q


Reviewing the role of the expert witness in childcare court casesby ALAN BURNELL of Family Futures

Amongst many other areas of family law the Family Justice Review, published in November 2011, addressed the role of the expert witness in family proceedings. To summarise the

key points the report concluded:• The use of experts is now a contributor to unacceptable delay.• Judges must order only those reports strictly needed for• determination of the case.• Judges must direct the process of agreeing and instructing• expert witnesses as a fundamental part of their responsibility for• case management.• A recent Family Justice Council report examined a sample of• expert psychological reports. It identified serious issues with their• quality and the qualifications of those carrying them out. Agreed• quality standards for expert witnesses in the family courts should• be developed.• Multidisciplinary teams have the potential to provide a better• service of expert assessment to the courts.These proposals will have a considerable impact on family

proceedings as we have known them in recent years. It is clearly unacceptable that the use of expert witnesses should contribute to delay. The duration of care cases has been a cause for concern in recent years to both Government and social work practitioners in the field of care proceedings and family placement. It is not uncommon for children to remain in ‘short-term’ foster care for 2 years or more. Children who have suffered significant harm in their birth family can then languish in safe care but with an uncertain future for the duration of their fostering placement.

At Family Futures, the focus of our work is often on a child’s ‘attachment history’. ‘Attachment’ refers to the bonds the child creates with a significant adult whom the child ideally identifies as a source of security and support. An ‘attachment history’ will describe the relationships the child has had to date, which lay down a template for the child’s relationships in future – to self, others and the world. Strong, secure, supportive attachments are predictive of a life in which healthy neurological, physiological and psychological development can occur. The child develops into a resilient individual who can be independent, interdependent, empathic towards others, open to learning and optimistic for the future. The opposite is true for attachments that are ‘insecure’ as is most often the case for children taken into the care system who have had to deal with multiple risk factors (abuse, neglect, loss, trauma, stress, domestic violence, addiction and so on). The life of an individual who has experienced insecure attachment is predicated on distortions in the global development process, resulting in reduced coping capacity, limited empathy, limited openness to learning and a profound sense of hopelessness about themselves and the world.

The uncertainty and duration of foster care can compound the distorted attachment behaviour of the traumatised child. Foster carers have to live with the uncertainty which will often leave them ambivalent about the appropriateness of their forming close and meaningful attachments to the children in their care. This ‘attachment vacuum’ does not bode well for the child’s future capacity to attach to long-term carers or adoptive parents. It is therefore important that the law and the legal profession do whatever they can to reduce delay and speed up resolution and determination, as this will clearly be in the best interest of the child.

As a social work practitioner, who in the past has spent many fearful hours in the witness box both as a witness for the

local authority and as an expert witness, I welcome the two recommendations pertaining to the role of judges in relation to expert witnesses. I believe that judges should take a much stronger role in the management of cases and that it is right that they should decide which expert witnesses should be appointed.

In my personal experience as a witness, I have found care proceedings to be highly adversarial. Witnesses, including expert witnesses, are often attacked in an attempt to discredit their testimony by opposing barristers or solicitors. If expert witnesses were appointed by the judge, their evidence could be directed more clearly at the issues that require resolution and they would be protected and shown the respect that an appointee of the judge would deserve.

My only caveat would be that for judges to instruct expert witnesses appropriate to the case or the issue, they themselves need to have quite a sophisticated knowledge not just of the law but of psychology, psychiatry and paediatrics in order to determine which expert in which field to instruct. This proposed change may therefore have implications for the training of judges.

The issue of quality is a concern as one looks to expert witnesses for high quality professional assessments of situations and people. The report quotes concerns about variations in quality. It is important therefore that though there are guidelines for expert witness reports and their format, we now need to look for the determinates of quality. As cases may hang on the evidence of an expert witness and judges and guardians defer to them, it is vital that the evidence they give should be of the highest standard. It is never easy to legislate for quality, but it is right that the courts should dictate the calibre of the evidence-giver on whom they are so dependent.

Family Futures has pioneered the development of a specialist multi-disciplinary assessment and treatment service for children who are fostered and adopted. We have done so because of our growing awareness over the past ten years of the neuro-scientific research and theorising that has gone on in the field of child development, attachment and the impact of trauma on children. There is a growing acceptance that the concept of ‘developmental trauma’, as propounded by Van der Kolk (2009), Perry (2006) and others, best describes the sequelae of repeated trauma in infancy.

The multiple developmental impact of a high stress and poor parenting environment requires us to look for multi-disciplinary assessment and treatment programmes. It is no longer sufficient to use a singular ‘expert when dealing with multiple causations and multiple developmental impacts’. A further challenge is that there is a growing understanding that traditional psychiatric/psychological and paediatric diagnostic categories inadequately describe the symptomology of the children who find themselves the subject of family proceedings as a consequence of poor parenting. The work of Tarren-Sweeney (2010) in New Zealand recognising the need to develop specific assessment tools for this population is a testimony to this. The legal and child mental health services therefore need to embrace the concept of multi-disciplinary working when seeking expert opinion in the future. q

• Alan Burnell is Registered Manager and co-founder of Family Futures. Family Futures is an integrated multi-disciplinary assessment and treatment service, based in London, which works with traumatised children who are fostered or adopted and have attachment difficulties.


Forced marriagesAn international perspectiveby DR BASHIR QURESHI FRCGP, FRCPCH

Marriage is a legal contract of becoming husband and wife and may also be a religious union. A wedding is a civil or religious ceremony during which this act is performed. Worldwide,

a couple may have a civil or religious wedding, or both, but it is mandatory that the law of the country should be able to recognise the marriage certificate as a legal contract. Usually, a legal marriage certificate in one country is recognised in every other country.

Common marriages are: • Western or choice marriage.• Eastern or arranged marriage.

Less common marriages are:• Child marriage.• Polygamy (attributed to Islam). • Common Law marriage (partnerships).• Religious marriages without legal/registrar’s certificates.• Marriage for money.• Marriage for monetary benefits/housing.

Uncommon marriages are:• Gay marriages – only in the Western culture.

Un-recognised marriages are:• Marriages without certificates such as religious marriages.

Legally challenged marriages are:• Forced marriage.• Fake marriage. • Marriage for a dowry.• Marriage for immigration – if a fraud.

East or West, a successful legal marriage is the best. Indeed, a marriage is aimed to provide physical, psychological, spiritual, sexual, social and financial security to the couple. It also provides stability to their nuclear or extended families. Although their approaches are opposite to each other, Western choice marriages and Eastern arranged marriages achieve the same results of stability, solidarity and prosperity to the families. In both systems of marriage, the ideal situation is a happy married couple – but next best is a happy single!

Western marriagesWestern marriage is based on the free choice of a man and a

woman. Marriage makers are not required and parental approval is not necessary. It is based on the principle of ‘try before you buy and then don’t cry’. Virginity of women, before marriage, is desirable but not essential. Courtship is encouraged. Social events, religious functions, parties and singles groups provide opportunities for single people to meet and get to know each other.

After marriage, the bride and bridegroom leave their respective parents’ homes and migrate to their own home. If a man or a woman does not marry, there is no pressure from the family or relatives. Adultery is frowned upon and may lead to divorce. There is a social security and benefit system for financial hardship of every citizen in the West and parents do not have to support the couple.

Eastern marriagesEastern marriage is based on

parental choice, as it is they who finance the family. The man and woman are simply consulted or persuaded. After marriage the man is the bread winner and the woman, with her children, has to be financially supported by him. Until the bridegroom can earn enough, his parents have to support the couple. There is no freedom without financial freedom. Marriage makers play an active part. Marriage is based on the principle ‘the less you know of others, the more you would stick to one’. Virginity of a woman before marriage is absolutely essential and it is her family’s responsibility to chaperone her all the time. Courtship is strictly forbidden. It is preferable to marry within the tribe to ensure financial and marital stability. Sometimes both sets of parents watch the prospective partners performing a ‘stick dance’ at someone else’s wedding ceremony to assess their compatibility. Some parents are rigid and others are flexible. After the marriage, the bride leaves her parents’ home and lives at her parents in law’s home, then her husband’s home forever. Even in cases of divorce, the bride stays at her parents in law’s home. Everyone is expected to get married unless there is a disability such as, for example, schizophrenia. Adultery is a very serious cultural and religious crime and it could lead to the murder of the woman and the lover, as a deterrent for others.

Forced Marriages‘Forced marriage’ is still a marriage by consent, as the bridegroom and

bride both agree and sign their consent in a registrar’s office or religious priest’s register or both. It differs from an arranged marriage, in that the bride (more often), bridegroom or both do not want to get married to each other but are forced by their parents or other relatives. It can be ended by divorce at any time but such a person may be permanently disowned by their extended family and tribe. There would be no further financial and moral support by their family. This only occurs in Eastern culture, and ‘westernised’ Easterners are particularly vulnerable. The pressure from parents could be emotional, physical, bullying or financial.

Parents themselves are usually under pressure to preserve their traditional Eastern arranged married system for financial security of the bride and feel that they are innocently under cultural obligation. If they do not do so, their relatives and tribe will disown them from arranging marriages of other siblings within the same tribe. Some non-religious ‘westernised’ Eastern women feel aggrieved. They may even approach Western authorities to punish their parents, instead of simply to divorce each other and live happily thereafter in the Western culture. Currently, it is a story of our time and it is likely to diminish in next generation as the parents themselves choose either Western or Eastern culture as their main culture. It is a scenario where every party is innocent and there are valid reasons why conflicts occur. Consequently, wisdom should prevail over instinctive anger in managing such a conflict, especially by Courts and politicians. Put simply, a divorce can end such a conflict.

Finally, Rudyard Kipling was not half right when he said “Oh, East is East and West is West, and never the twain shall meet”. q

• Dr Bashir Qureshi is an Expert Witness in cultural, religious and ethnic issues in litigation. He is also an expert witness in GP clinical negligence, a GP and author of Transcultural Medicine.


PIP patients: will clinics bow to Government pressure?CHRIS STOKES looks at the latest twists in the breast implant story

Pressure is mounting on private cosmetic surgery clinics to meet the cost of replacing breast implants supplied by the French firm PIP, according to law firm Leigh Day and Co, which specialises

in medical negligence claims.The company cited new advice issued by the Department of Health,

which stated: “Private providers have legal obligations to their patients. The NHS will offer a package of care for its patients, and we expect the private sector to do the same.”

However, the same release by the firm admits that government pressure is not necessarily working. It says: “The government is pressurising the private sector to remove implants without charge, but a number of private clinics are resisting, saying that there is no evidence to suggest routine removal of PIP implants.”

The firm’s defective medical products solicitor Michelle Victor has been approached by a number of women looking for help in making private clinics pay for the removal of the faulty breast implants. She welcomed the government’s announcement that it will remove implants for concerned women if they have had their implants on the NHS, but described as “disappointing” its failure “...to take more decisive action to compel such clinics that implanted them to remove and replace them.”

“The government has allowed these clinics to be left to their own

devices," she said, adding that “they have not been made to act where action is now needed.”

Despite the bold sentiment “expecting” the private sector to take action, the Department of Health statement backs down on offering clear advice on removal. It lamely repeats the advice of the Medicines and Healthcare products Regulatory Agency (MHRA), stating that the group of experts commissioned to examine the issue “...has concluded that the advice given by the MHRA still stands and that there is not enough evidence to recommend routine explantation of these breast implants. The group also agrees there is no link with cancer.” That part of the statement was latched onto by clinics as a reason to refuse to remove or replace the implants.

The sorry saga looks set to descend into farce, with a number of personal injury solicitors, including Leigh Day themselves and Thompson’s, hinting that the issue could become one of consumer rights, with a claim that the implants are ‘not of merchantable quality’ under the terms of the Sale of Goods Act 1979.

Again the Department of Health statement says: “…it is undeniably the case that these implants are made up of non-medical grade silicone and therefore should not have been implanted in women in the first place.”

Ironically, it could be the market itself that determines the outcome. A number of eminent plastic surgeons, including past and present BAAPS council members, have hinted that patients may think twice before “…making a choice solely on the basis of price.” q

Are Cameron’s H&S attacks political incorrectnessgone mad?

Personal injury specialists Thompson’s has been stung into responding to the Prime Minister’s attacks on the ‘health and safety culture’ and has called on the government to stop basing

policies on myth and anecdote.The firm’s head of policy and public affairs, Tom Jones, said: “Why

does the government commission reports when they ignore the conclusions? All government-published reports show that there is no compensation culture and yet the government keeps referring back to something that they know doesn’t exist.

“There is no evidence either from Lord Young’s report or the more recent one from Professor Loftstedt – who found that the UK’s health and safety laws were ‘broadly right’ – that businesses are in a stranglehold of health and safety red tape.

“It is time the government stopped making policy on the basis of myth and anecdote in order to get a headline and to help their friends in the insurance industry to save millions.” q


Temporomandibular disorders (TMD)– Jaw joint problemsby DR ROBIN J M GRAY BDS, MDS, PhD, MFGDP, FHEA

Problems with the temporomandibular (jaw) joint (TMJ), jaw muscles and the bite (occlusion) are common. Many individuals suffer from symptoms such as pain from the jaw

joint itself (commonly mistaken for earache), jaw joint sounds such as clicking or grating, restricted mouth opening or pain from the jaw muscles (often confused with headache).

There are 4 common conditions: Pain dysfunction syndrome / facial arthromyalgia / myofascial

pain. This is the most common condition and can arise spontaneously or as a result of trauma. It is characterised by pain in the jaw joints and/or jaw muscles and restricted or altered mouth opening.

Internal derangement. This is represented by jaw clicking or mouth locking due to a physical obstruction in the joint. This can arise as a result of external trauma such as an assault or traffic accident.

Osteoarthrosis. This degenerative joint disease can arise spontaneously or as a direct result of external trauma.

Dislocation. This is rare and is usually associated with trauma to the face.

Jaw joint problems can arise spontaneously or as a result of trauma, either direct or indirect, to the face or jaws.

Direct trauma can be a blow to the face in a sporting incident, as a result of an assault or, most commonly, as a result of a road traffic accident. The ‘whiplash type’ injury frequently leads to the development of a jaw disorder which often does not become apparent until sometime after the initial incident.

The development of a TMD can result as a direct response to negligent dental treatment. The articulatory system – the jaw joints/jaw muscles/occlusion (bite) – act together and any factor that affects one of these components will have a direct effect on the others. Therefore if a dentist places a restoration which is not in harmony with the rest of the occlusion this can directly cause problems with the rest of the system. This is basic undergraduate knowledge.

When considering medico-legal implications of TMD it is important to accept that the jaw/facial pain symptoms might not develop or become evident immediately after an accident. Sometimes the symptoms from the cervical spine can be overwhelming and can mask the problems from the jaw injury, only for these symptoms to become apparent later.

In addition jaw problems are not always ‘curable’. It is not unusual for symptoms to vary with the stage and progress of the disorder. A patient may initially present with a click from one jaw joint and with pain from the other side, only to be replaced some time later with restricted movement on trying to open the mouth and the click having disappeared. q

• Dr Robin Gray has been treating patients with jaw problems for about 30 years and receives over 1,500 new referrals every year. When he set up his clinic at Manchester University in 1983 they received 240 referrals in the first year but the 85-90% success of the treatment philosophy attracted more and more referrals.

He was appointed Senior Lecturer in Dental Medicine and Surgery in 1997, but has now retired from the University and runs a clinic dedicated to treatment of TMD patients and medico-legal reporting at The Beeches Consulting Centre, Alexandra Hospital Grounds, Mill Lane Cheadle, Cheshire SK8 2PY (Tel 0161 428 4185). He is happy to accept referrals for treatment or for medico-legal reports. Dr Gray lectures both nationally and internationally and has had over 75 papers published in scientific journals as well as publishing 3 textbooks on the subject.


always on the defensive we are less able to fight off other infections or repair damage due to diseases elsewhere in our bodies. Recent research has highlighted the important correlation between people who have periodontal disease and people who have heart disease, showing that when periodontal disease is present patients are less likely to recover from heart attacks and strokes. The presence of an immune system on high alert has also been shown to increase the tendency for blood clots to form, making strokes and heart attacks more likely. It’s even worse, because similar correlations exist between periodontal disease and diabetes which make it more difficult to control, and also for women who have a higher susceptibility to preterm and/or low birthweight babies. So this silent, innocuous seeming condition is actually a lot more serious and potentially life-threatening than we had originally thought.

Much of the work that I do as an expert witness involves the lack of diagnosis and treatment of periodontal disease by dentists resulting in premature tooth loss and the need for extensive restorative work to redress the damage caused. However, the medical implications of undiagnosed periodontal disease are potentially enormous and therefore need to be considered not only by dentists but also medical practitioners and medical care teams as a central aspect of preventive care.

So, as the dental profession responds to the public’s demands to look good, to have nice looking teeth with a bright smile and no tooth discolouration, and certainly no bad breath or other unpleasant symptoms, we need to make sure that the foundations for all this cosmetic work (i.e. the teeth and even more importantly the roots of the teeth) are maintained in optimal health. Not only is this essential to ensure long-term support and stability of restorations, and particularly cosmetic restorations, but also to promote wellness and therefore physical well-being in our patients.

The earlier we catch this condition the easier it is to nip it in the bud and bring it under control. The longer it simmers away, eroding the foundations with the bone and with gum tissues shrinking to create major cosmetic problems such as teeth out of alignment, and development of that ‘long in the tooth’ horsey smile, the more difficult it is to rebuild those lovely engaging smiles that we had before the disease progressed.

It is self-evident that we, in the medical and dental care professions, need to be more vigilant in diagnosing and managing this condition. However, what is more important is that members of the public should be much more aware not just of its unpleasant social side-effects and the potential for tooth loss in the future, but of how dramatically it may affect their overall medical welfare.

So, if you know someone with bad breath or with bleeding from their mouth from no apparent cause, maybe you should have a quiet word with them about getting the problems seen to as a matter of urgency. After all, it’s not only their looks and social life that you may be saving, you may just be saving their lives! q

Gum disease: the silent destroyer!by DR PETER GALGUT, specialist periodontist at P G Services Ltd

Gum disease, or more correctly periodontal disease, is not what we once thought. It is a condition where the gums get red, swollen and start bleeding. Other symptoms might include vague aches

and pains around the mouth, bad tastes and, most importantly, bad breath. In very advanced stages pus starts to exudate from the gum margins (hence the old name pyohrroea, meaning pus and bleeding) and the teeth start to move about , become loose in their sockets and have to be extracted.

The trouble with gum disease is that inflammation and infection with these symptoms anywhere else in the body would result in pain and distress, but for some unknown reason this destructive infection of the gums slowly progresses without any pain or other distressing symptoms. By the time the major symptoms of moving teeth and pus appear it’s too late to save the teeth!

But that’s not all! The most recent Adult Dental Health Survey (2009) has shown that as many as 83% of adults in the UK have gum disease to a greater or lesser extent. That means just about every adult has this silent, simmering, destructive problem. You could be one of them! And so could your partner, other members of your family, work colleagues and, in fact, just about everyone around you! But apart from the social problems of bad breath, the unpleasantness of bleeding from your mouth and bad tastes, current research has shown that the problem extends its destructive tentacles into other parts of the body.

Because gum disease is essentially an infection that can simmer away for years, our immune systems are continuously fighting off this infection. What this means is that because our immune systems are


Problems with pulmonary embolismby PHILIP COLERIDGE SMITH DM MA BCh FRCS, Consultant Vascular Surgeon

Each year 25,000 people in England die from venous thromboembolism. This figure includes both patients admitted to hospital for medical care of serious illnesses as well as those

admitted for surgery, according to the House of Commons Health Committee. This is a larger number of deaths than are attributable to breast cancer, AIDS and road traffic accidents.

In many patients, death from pulmonary embolism (PE) is a terminal event as part of another severe illness such as cancer, advanced heart failure, severe lung disease or stroke. However, as the House of Commons Health Committee noted, this may be the cause of death or serious illness in patients being treated in hospital for curable conditions.

Pulmonary embolism arises as a complication of deep vein thrombosis (DVT). In this condition, a combination of slow blood flow during anaesthesia, severe illness or even long haul air travel permits blood clots to form in the leg veins. This arises spontaneously in 1 person per 1,000 per year in the general population, perhaps without provocation. In a proportion of patients the blood clot is loosely attached to the veins in the leg and becomes detached. The clot then travels via the large veins to the right side of the heart, which it passes easily to reach the pulmonary artery. This vessel leads to the lungs and divides into ever smaller branches where the embolism becomes lodged, blocking the vessel in which it comes to rest. A very large pulmonary embolism may lead to complete occlusion of the circulation leading to sudden death. However, in many patients smaller emboli travel to the pulmonary arteries blocking part of the circulation to the lung. Over time, more

emboli arrive leading to a progressive deterioration in the patient’s condition.

Preventing deep vein thrombosis and pulmonary embolism

A great deal of research has been done on this subject and several methods of prevention of deep vein thrombosis have been devised. These include both the use of anticoagulant drugs and mechanical devices such as elastic stockings and intermittent pneumatic compression sleeves to encourage blood flow in the legs. The best means of using these has been the subject of detailed guidance issued by the National Institute for Health and Clinical Excellence and the American College of Chest Physicians (ACCP). Patients being admitted for treatment in hospital should always undergo a risk assessment for the likelihood of developing a DVT following their treatment or operation. Some conditions, such as stroke and some operations, especially those to replace hip and knee joints, are especially likely to give rise to DVT and PE. This risk of venous thromboembolism increases with advancing age as well as in patients with cancer, those with morbid obesity and with a family history of venous thromboembolism. If the guidelines are not followed and prophylaxis not provided, resulting in the development of a DVT or PE, a claim for negligence may arise.

Problems with the diagnosis of pulmonary embolismOne of the oldest problems in the management of PE is establishing

the correct diagnosis. Modern observational studies show that in patients presenting to medical services with pulmonary embolism without gross compromise of the cardiovascular system, more than 95% will survive if treated correctly. Full anticoagulation with heparin (usually low-molecular weight heparin) is very effective in such patients. Where severe cardiovascular compromise is present the addition of thrombolytic treatment (clot busting drugs) is usually advised.

In patients who do not receive anticoagulation the mortality is much higher. Only one randomised clinical trial has investigated the effect of treating a group of patients with heparin compared to untreated controls – this was conducted in 1960. The mortality in the untreated group was more than 25% after 4 weeks and the subsequent recruitment to the control group was abandoned.

In 1975, Dalen examined the natural history of pulmonary embolism in the USA. He estimated that 11% of patients with acute pulmonary embolism die within 1 hour and so do not receive treatment. Of the remaining patients, the diagnosis was only established in 29% and treatment commenced – most survived. The majority of deaths occurred amongst the remaining patients where the diagnosis was not made and no appropriate treatment was given – 30% died. A further paper in 2002 from the same author, confirmed that despite the advances in medical technology, failure of diagnosis of PE remained a problem.

Why is the diagnosis of PE so difficult despite the fact that death from pulmonary embolism affects 25,000 people per year? In hospital patients those experiencing recurrent episodes of chest symptoms may be thought to have post-operative chest infection and are treated with antibiotics. The possibility that a PE may be the cause of symptoms may not be considered. Widely used methods of preventing DVT in hospital are not entirely effective and clinical trials of these methods of prevention indicate that a small proportion of patients, probably less than 10%, still develop DVT or pulmonary embolism despite the use of anticoagulants and graduated compression stockings.

PE may also occur in non-hospitalised patients who present to Accident and Emergency Departments with a history of collapse, chest pain, breathlessness or coughing blood (haemoptysis). A&E Department staff should be aware of possible risk factors such as recent surgery, recent limb fracture, morbid obesity, recent long haul air travel or evidence of limb


swelling attributable to deep vein thrombosis. The diagnosis in any patient with a history of collapse should include

pulmonary embolism, as well as more common problems such as myocardial infarction or other cardiovascular disease, stroke or other neurological problem. One of the key monitoring tests is blood oxygen monitored by pulse oximetry. This simple test should be routine in any patient with a history of collapse. PE results in a reduction of blood oxygenation which can be readily detected by pulse oximetry. Other tests which should be done immediately include electrocardiogram (ECG) and chest x-ray. ECG may contain useful clues to pulmonary embolism, including signs of strain to the right side of the heart. Chest x-ray is usually normal or contains non-specific changes but will exclude other possible causes of reduced blood oxygenation. Other investigations are also useful, including echocardiography and CT pulmonary angiography of the lungs which will provide the definitive diagnosis.

These latter tests may take some time to arrange, during which patients may die of PE. However, the ACCP Guidelines, echoed in advice offered in other consensus documents, indicate that treatment with anticoagulation should be commenced with strong clinical suspicion without waiting for the definitive diagnostic tests. The risks of full anticoagulation with heparin are few and the benefits considerable – more than 95% of patients will survive their PE.

Clinical casesDespite the well known symptoms and risks of PE, the author has

provided opinions concerning a number of cases of fatal pulmonary embolism. In one case a patient developed chest symptoms in hospital two weeks after curative surgery for cancer. He was treated in hospital over a period of another week with three different antibiotic regimes, even when there was no objective evidence of a chest infection. He was discharged taking antibiotics and his condition continued to deteriorate. His GP referred him to another hospital where symptoms in the legs were attributed to gout. Anticoagulant treatment was not given. He died a few

hours later and was found to have pulmonary embolism at post-mortem examination.

In another case, a morbidly obese patient suffered a minor fracture of the ankle and had a plaster case applied to the limb. Two weeks later she suffered episodes of breathlessness, chest pain and collapse. She was admitted to the A&E Department of her local hospital where further episodes of collapse were observed but no treatment was given. She died after an episode of collapse five hours after admission to hospital. No treatment had been given.

In both of these instances the defendants settled the cases for substantial sums. The latter case gave rise to differences between experts as to the time required for the anticoagulant treatment to become effective in preventing pulmonary embolism. These drugs are effective in producing anticoagulation immediately if given by intravenous injection, or after 20-30 minutes when injected subcutaneously. No clinical trial has shown how long it then takes for PE to be prevented. Observational data is available on the outcome of treatment in a cohort of 15,000 patients treated for pulmonary embolism. I sought evidence from these data for a delay in onset of efficacy of heparin treatment but was unable to prove this after statistical analysis. Heparin anticoagulation probably becomes effective at preventing death from pulmonary embolism as soon as its pharmacological effect has been established.

In conclusion, pulmonary embolism remains a common cause of death of patients in hospital and is the terminal event in the lives of some patients with serious illness. However, it may also be the cause of unexpected death in patients receiving curative treatment for conditions as minor as ankle fractures. Assessment and establishment of the correct diagnosis leads to treatment with the survival of more than 95% of patients. Failure to reach the correct diagnosis is a common cause of unnecessary deaths. q

• Philip Coleridge Smith is a Consultant Vascular Surgeon and Medical Director at The British Vein Institute and Reader in Surgery, UCL Medical School.


Fibromyalgiaby DR MICHAEL CAWLEY MD, FRCP

Fibromyalgia is a name devised in the 1970’s for a clinical condition which has been recognised for some 200 years, although is still of obscure origin. Earlier terms for the

same or similar disorders included ‘fibrositis’ and ‘psychogenic rheumatism’. The predominant symptom of fibromyalgia is chronic diffuse pain, felt mainly in the skeletal muscles. The pain is widespread and by definition is felt on both sides of the body and above and below the waist. It is common, and epidemiological surveys show a prevalence of one to four percent of individuals in Western populations. It can arise at any age, but starts most typically between the ages of 40 and 60, and it is at least three times more common in females than in males.

Patients often attribute the onset to previous physical trauma, such as road traffic accidents, or to emotional stress. The pain usually starts in the neck, shoulders and upper thoracic region but soon becomes widespread. It may be described as aching or burning in nature. Other common symptoms include excessive physical fatigue and a poor unrefreshing sleep pattern. Headaches often occur and there is also an overlap between fibromyalgia and irritable bowel syndrome.

What is now defined as fibromyalgia is at one end of the

spectrum of ‘chronic widespread pain’. In order to make diagnosis more accurate, diagnostic criteria were agreed by consensus in 1990, partly to assist with epidemiological studies. The most characteristic physical finding on clinical examination, and which is important in the diagnostic criteria, is the presence of localised discrete tender points at specified sites on both sides of the body, detected by firm pressure. It is also common in patients with fibromyalgia that other musculoskeletal examination is normal, and in particular there is no evidence of arthritis. There are, however, individuals in whom fibromyalgia and arthritis co-exist, because they are both common conditions. Individuals with fibromyalgia often retain adequate physical function and may continue in their employment.

The precise cause remains elusive. Although abnormalities of certain chemical substances and of circulation in the central nervous system have been demonstrated, and minor objective abnormalities of skeletal musculature have been reported, these changes are considered by most authorities to be secondary features rather than primary causative changes. Laboratory analysis of blood samples, and radiographs and other imaging procedures are typically normal.

The treatment of fibromyalgia is often immediately unrewarding, but studies show that about two-thirds of patients with the condition show some improvement over a number of years. Medication of various types may help due to their effect on pain perception. Thus low doses of tricyclic antidepressants, such as amitriptyline, may alleviate symptoms as may serotonin receptor inhibitors. Analgesics and anti-inflammatory drugs are of limited help. Marginal benefits have been claimed for a variety of other medication but none have been fully curative.

Progressive graded physical exercise is of help in some individuals to alleviate pain and fatigue. It is important that patients with this condition are given a rational explanation of their symptoms, that they are informed that they do have a recognised medical condition and that they are not dismissed as psychologically incurable. In this context cognitive behavioural therapy is of help, and the support of a team of healthcare professionals is of benefit in enabling the individual to come to terms with their symptoms and maintain optimal physical function. q


The Psychology of Chronic Painby DAVID PIKE MSc AFBPS CPsychol,

Consultant Clinical Psychologist at EducarePartners

Chronic pain is an utterly devastating condition that has huge psychological consequences. It is usually defined as pain that has continued for more than six months following an injury

and has now become a completely different ‘animal’ to acute pain. We all know acute pain and know how to handle it. If we wait, rest and take tablets then healing will take place, the pain will go away and we will go back to who we were before. With chronic pain rest just weakens us, tablets help to subdue it but do not cure it and healing just does not seem to take place. Socially our ‘sympathy credit’ runs out. People will make allowances for us while we are in pain but the implicit understanding is that the pain will resolve and they can go back to their lives rather than having to focus on us. Everyone is baffled, frustrated, distressed with no clear vision of how to solve the problem. The key psychological understanding of this condition is that if we treat chronic pain as if it were acute pain we will not get any improvement and can even make it worse.

The situation is made worse when there are no clear physical signs that could enable a doctor to pinpoint a physical cause. The person is now in the situation where they are clearly experiencing pain but get the feeling that the doctors suspect they are making it up because they could not possibly have any pain in the absence of physical signs. They are now losing financial support, may lose their job, lose their role within the household and have people suspecting them of malingering or making it up. They do not feel they are believed yet they know they still have the pain and if they are out of work for over three months, due to chronic pain, the chances of them ever going back to their old work plummet.

The last thing someone wants in this situation is for a therapist to ask them how they feel! This will just tune in hopelessness, despair and the illusory but seductive image that suicide is the only answer. Most people with chronic pain will contemplate this although, in my experience, actual plans to act on this are very rare indeed. Therapy must, therefore, give hope from the outset and not focus on feelings. The Psychologist must enable the person to face the reality that medical treatments will not solve the problem and waiting for them to work is the worst thing that they can do. This sounds harsh and so must be combined with another way forward that does provide hope rather than the pressure to keep pushing on with something that, try as they might, is just impossible. The person needs to reinvent themselves and often, if they pick up on a skill or hobby or talent they used to have but just never developed, this can transform their life. They can then

invest themselves in something that they can do rather than being constantly faced with the pressure to return to work that they can’t do. Lorry drivers begin to paint pictures, business ladies begin to organise charities, manual workers begin to sing. Success breeds success and pain doesn't feel so bad.

Adopting pain management tactics, including the proper use of medication, pacing physical activities and learning how to relax are all things that will reduce the distress component of the pain. However, the person is unlikely to be able to mitigate the losses they have experienced by going back to who they were. Putting pressure on them to do so can often make matters much worse and prolong the time before they wake up and realise that the only way forward is to take matters into their own hands and become a whole new person.

The attitude the person has to their disability is vital but to expect people to know how to take the correct one is, when most therapy professionals do not understand it and it is completely beyond their previous experience, completely unrealistic. If you are sourcing a Psychologist for assessment or therapy in this area it would be, in my opinion, prudent to choose someone who has specific experience in Pain Clinics or has worked with Pain Management Consultants. It is a very specialist field. q

• Contact David Pike at [email protected].


What is RSI?by DR ANTHONY CLARKE FRCP, Consultant in Rheumatology & Rehabilitation, The Bath Clinic

PART 2

Failure of duty of care does not mean that because a worker develops musculo-skeletal pain, then it must be the fault of the employer. Bearing in mind what I have said about the multitude

of causes of pain, I take the view that it is essential for claimants to demonstrate that the repetitive stress was in excess of safe limits and that the cause of their symptoms is due to that stress. I am constantly amazed by comments made by medical experts on causation which appear to be entirely what they were told by the claimant, without the advantage of seeing the work place or having any knowledge of the work practices. For those experts who are not ergonomists or occupational physicians, the strongest opinion that can be given is that if the Court is satisfied that there is a failure of duty of care, then the medical condition is of a type that could well have been precipitated by that failure.

I would also point out that it is most unusual for repetitive stress related conditions to develop after the individual has been undertaking the task for a number of months, or indeed weeks. Such injury is much more likely to occur when the task is being learnt and before the muscles and other structures have acclimatised to the new conditions. However, if there is a substantial change in either the quantity or difficulty of the task, then symptoms may arise. It must also be remembered that many of the potential causes of pain may arise spontaneously or be due to leisure or domestic incidents.

I have mentioned that many workers will suffer from nodal osteoarthritis, which can lead to pain in the finger joints and the thumb bases. It is so common that it is reasonable for employers to ensure that care is take to ensure that work tasks are not likely to

give significant problems to such workers, or can be modified. It is the same as far as back pain is concerned, and modification to the working arrangements made if back pain does make work more difficult. It is not reasonable to expect an employer to make prospective arrangements to prevent an employee becoming symptomatic from a pre-existing but rare condition such as thoracic outlet syndrome.

There are clearly significant psychological and cultural issues related to RSI. Of the psychological considerations, there is the risk of developing a chronic pain syndrome, with self-enforced lack of use of the limb due to catastrophisation, in which the sufferer believes that they cannot perform a task, because of fear of enhancing symptoms, even though they can, and do, do the task. Catastrophisation is seen outside the medico-legal process. It is not malingering and care must be taken in the interpretation of surveillance material. This does not mean that a claimant who states that they cannot walk because of pain and then is shown to be refereeing football matches on a weekly basis is anything other than deliberately trying to fraudulently obtain damages. On the other hand if a claimant is seen lifting a bag of shopping into the boot of a car, but otherwise is entirely consistent in their behaviour, this may well be catastrophisation.

It must be remembered that pain is essentially a neuro-psychological phenomenon. Like all sensations that humans are aware of, that awareness is an interpretation of sensory signals received by the brain. As such those sensory signals can be enhanced or suppressed by a wide range of circumstances, including drugs, intense excitement, previous experience and cultural background.

Reduced self-esteem can be a very powerful pain enhancer. I saw a lot of coal miners from South Wales at the time of the pit closures. The history was usually of an individual who had experienced several significant underground accidents resulting in broken bones, but with return to work, usually within weeks. As they were made redundant, and their wives became the breadwinners, the most trivial of injuries became disabling. It is interesting just how many employees injured at work and making a claim, cite lack of support from their managers as a prime reason for going to law. Probably the best preventive approach to litigation is a genuine caring attitude by the employer.

Advances in neuroradiology, with functional MRI, are beginning to show evidence of changes in the central nervous system in people with chronic pain, including those with occupation disorders. However, at this time we still need to rely on a good, systematic approach to the assessment of claimants who present with work-related pain, which should include a proper diagnosis, careful judgement on causation and continuity, and a positive approach to management. q

In the last edition of Your Expert Witness I introduced the topic of RSI and pointed out that the majority of sufferers from limb pain have an identifiable and treatable cause. In the second part I will talk about causation and the psychological and cultural issues in RSI.


Common knee injuries –diagnosis and prognosis

by MR. TANWEER ASHRAF FRCS, Consultant Orthopaedic Surgeon

The knee is a complex joint with ligaments and cartilages. The bone in the knee joint is supported by ligaments on the inner and the outer side called the collaterals which protect the joint moving

from side to side. The ligaments inside the knee (cruciates) provide it with a rotational stability and the surfaces of the bone are lined by an articular or lining cartilage. This cartilage goes through a physiological process of ageing and in many cases leads to wear and tear, technically called arthritis. Between the linings of the joint lies another cartilage in a structure called the meniscus which acts as a cushion between the bones. The joint itself is enclosed in a capsule, the inside of which is called synovium (a thin membrane).

The cruciate ligaments and menisci can get damaged as a result of a twisting injury, whilst the collaterals may get damaged due to an outward or inwardly directed force on the knee. Often, multiple structures in the knee are damaged by the complex nature of the deforming force. The ‘articular’ or lining cartilage can be damaged due to a direct impact on the knee or secondary to irritation caused by a damaged meniscus. Ligament injuries that make the knee unstable can also cause secondary damage to the lining cartilage. Both the primary and the secondary injury can alter the physiological ageing process of the cartilage leading to early wear and tear.

Injuries to the knee cap may cause it to dislocate leading to damage of the supporting ligaments and tendons. In addition, the lining cartilages of the knee cap can also get damaged as a result of its dislocation. Fractures of the bones occur due either to a very strong force or a high velocity impact.

A knee that swells up within an hour of an injury is likely to have either a rupture of the cruciate ligament, a fracture or a large tear in the periphery of the meniscus. The swelling is caused by blood in the joint. Most other injuries lead to swelling six to twelve hours after the injury.

Patients presenting with instability of the knee after more than six to eight weeks are likely to have torn their cruciate ligament. Patients who complain of jamming of the knee or who are unable to to fully straighten it are likely to have damaged either the lining cartilage or the meniscus.

Radiographs are of little help unless there is a fracture associated with the injury. The investigation of choice is an MRI (Magnetic Resonance Imaging) scan.

PrognosisThe condition of the knee prior to the injury is important to evaluate

as an injury may trigger a previously dormant degenerative condition. A detailed history of the patient, a review of medical records and any previous radiographs is crucial for this evaluation.

The medial (inner) collateral ligament sprains, a common injury, heals in about 6-8 weeks. These may need initial use of a brace and in about 20% of cases physiotherapy for three to four sessions. Less than 5% cause long term problems of instability of the knee and a very small fraction need surgery. Usually patients return to office type work in six weeks and manual work in eight weeks.

The lateral (outer side) collateral ligament on the other hand, is a rare injury. This is caused by a very violent force such as a direct hit from the bumper of a car or during aggressive sports like rugby. This ligament injury seldom repairs itself and often needs surgery from which it may take more than a year to recover. Long term complications are of knee instability and an inability to perform manual work.

Tearing of the Anterior Cruciate ligament is a common twisting

injury, especially when the foot is stationary and the body twists on the knee. An example of this is a foot caught in a pot hole whilst walking on the pavement. The ligament almost always needs reconstruction in young and sporty patients, whilst patients with a low demand of sports activity and over the age of 50 can be treated with physiotherapy. Recovery takes about a year from reconstruction and about 4-6 months in those treated with exercise. Varying degrees of instability may persist when the ligament is not reconstructed and this can manifest as a giving way of the knee. This ‘give way’ can lead to accelerated degeneration of the knee cartilages and in the long term may bring about post traumatic arthritis.

The posterior cruciate ligament is an uncommon injury. It can occur in a road traffic accident when the dashboard of the car hits the knee at the time of head on collision, although more commonly it occurs in sports related activities like rugby.

Most of the time this injury is treated with physiotherapy and takes about three to nine months to recover. Reconstruction procedures are complex and rare and mainly undertaken when non-operative treatment has failed.

Twisting injuries that lead to damage of the meniscus may vary in intensity. Small meniscal damage can grind itself away without producing long term symptoms, however larger tears may need keyhole surgery (arthroscopy) to address the torn part of the meniscus.

Arthroscopic removal of the meniscus takes three to four weeks to recover and may warrant six weeks away from manual work. Repairs of the meniscus undertaken in younger patients take much longer and often up to six months to fully recover. Results of the repair depend on the blood supply to the meniscus, the extent of the tear and the surgical technique involved.

Dislocations of the knee cap take about three to six weeks to recover unless the patient’s anatomy is predisposed to patellar dislocations. The usual treatment of dislocation is physiotherapy with up to three to six sessions.

Arthritis of the knee is not a condition confined to the ageing population and can be seen in young and active patients who have suffered an injury to the ligament or the cartilage. A detailed evaluation is best undertaken with the help of an MRI scan – an expensive investigation, the cost of which should be taken into account by the instructing parties.

Hypersensitivity of the knee after an injury is a recognised problem which is difficult to diagnose and treat. Investigations are of little use. Clinically the knee is sensitive to touch and does not bend. Treatment involves a pain relief management team along with a physiotherapist and the immediate and long term results of the condition are unpredictable. q

• Mr Ashraf is a Consultant Orthopaedic Surgeon at The Royal Orthopaedic Hospital, Birmingham. Contact Mr Ashraf at Woodlands Private Knee Clinic, The Edgbaston Hospital, 22 Somerset Road, Edgbaston, Birmingham B15 2QQ or email [email protected].


Road traffic accidents and their consequences

by Mr JON LEIGH ND, DO, Registered Osteopath

The most common result of a road traffic accident is a whiplash injury. This, however, may just be the beginning. For, although whiplash injuries result in neck pain and associated pain in the

arms due to irritation of the brachial plexus nerves which emanate from the neck, other parts of the body may also suffer direct and indirect injury.

At the time of the impact, the body may be subject to forces of up to 10G, for at this instant the body weighs up to ten times its normal weight. Although the effect is for a very short time, it only takes microseconds for the body to be affected. Forward or backward acceleration is followed immediately by an opposite de-acceleration as the body is either restrained by the seat belt or the car seat. Not only are the bony structures subject to violent forces but the soft tissues are also subject to the same forces and unseen abdominal or inter-cranial (brain) damage may be incurred.

It is for this reason that at the site of a motor vehicle accident it is vital that emergency procedures are applied immediately and that every victim of the incident is assumed to have the most serious injury until they have been fully examined.

This principle also applies to the osteopathic examination of anyone who reports as having been involved in a car accident within the previous twenty-four hours. In such a case, the patient is well advised

to attend their local accident and emergency department so that x-ray or MRI examinations may be made, to eliminate the possibility of any hidden injury. The injuries incurred are directly related to speed at the time of the impact. The higher the impact speed, the greater the potential for internal injury.

Having assumed that the initial examination eliminates any major structural or internal damage, the subject of the accident may still experience a deal of pain and suffering. Some of this may be due to relatively minor internal soft tissue injury to tendons and muscle damage as well as joint injuries, which will affect the ligaments holding the joints together, as well as damage to the joint surfaces themselves. These injuries do not show up on x-ray, as soft tissues are not directly visible. They may show on MRI scans but in the absence of major symptoms, these procedures are not carried out as routine. It is at this point of the clinical investigation that a detailed, expert examination will highlight these injuries. It is important that the examining physician has the knowledge, skill and expertise to fully examine not only the quantity of movement present but also the quality of the movement. This examination, combined with an examination of muscle control and strength, will highlight any disturbance to the integrity of the musculo-skeletal system.

Following the diagnosis of any mechanical, structural or visceral injury, the Registered Osteopath will then be able to prescribe and administer the appropriate treatment. The essential aim of osteopathic treatment is to restore the full range of mobility to all joints using gentle, rhythmic movements, combined with, as necessary, specific joint adjustments. The combination of these procedures will result in full and free mobility being restored, resulting in a reduction of any guarding muscle spasm and subsequent nerve irritation.

With normal mobility and mechanical integrity restored the body will function normally and pain and discomfort that might not immediately be recognised as the consequence of the road traffic accident will abate. In many cases, patients who have reported pain in their peripheral joints, knees, ankles, elbows and wrists, have reported an abatement of these symptoms when their primary spinal whiplash injuries have been successfully treated. This reinforces the importance of having a full, expert spinal examination following any road traffic accident, especially when one remembers that whiplash injuries can result from any impact in excess of five miles per hour. q


Graham J. Cox MB BS BDS FRCS (Eng) FRCS (ORL), consultant surgeon,expert witness

A consultant ENT surgeon at the John Radcliffe Hospital in Oxford and a Macmillan Head and Neck Surgical Oncologist for fifteen years, Graham J. Cox MB BS BDS FRCS (Eng)

FRCS (ORL) has served as an expert witness in many industrial noise induced hearing loss cases, as well as in both private and NHS Trust medical negligence cases.

Mr Cox has contributed to national guidance in head and neck surgical oncology, has advised the National Cancer Action Team and NICE in this area and has made numerous presentations at international specialist meetings and workshops.

He has a particular interest in quality management in medicine and is a Specialist Associate of the General Medical Council. He has led Deanery Quality Assurance visits and has served as Vice Chair of the Specialist Advisory Committee in ENT for the surgical Royal Colleges. As such, he has been involved in curriculum development in ENT surgery, and in setting standards in post graduate medical education. q

Profiling...


Asbestos related conditionsby DR DAVID SINCLAIR, Consultant in Respiratory & General Medicine

Diffuse Pleural ThickeningDiffuse pleural thickening causes restriction of lung capacity

by thickening the pleura lining the outer surfaces of the lung and in essence forming a shell of tissue which restricts respiratory movement, hence causing breathlessness and loss of lung function. No clear threshold in terms of asbestos exposure has been identified for the development of this condition, but exposure levels significantly less than those necessary for the development of asbestosis are recognised as being causative.

This condition and the implications for compensation are poorly understood by many medical practitioners.

Other conditions unrelated to asbestos exposure may cause a very similar clinical picture including rheumatoid arthritis, tuberculosis and previous cardiac surgery.

AsbestosisThe key issue here is the exposure history of the claimant.

Unless the Helsinki criteria of an asbestos exposure of 25 fibre/ml years are achieved, in my experience, a claim for asbestosis

will not succeed. Such exposure means a worker has been in an environment containing 25 asbestos fibres per ml of respired air for a period of 12 months or a respirable asbestos content of 12.5 fibres per ml for 2 years, etc. It is accepted that a years’ very heavy exposure, such as working in demolition, lagging or similar, equates with an exposure of one 25 fibre/ml year, and the recent Sabin case helps illustrate the exposure levels necessary. Secondly, the radiological appearances must be supportive and ideally high resolution CT scan images should be available to underpin the anatomical lung destruction necessary for the clinical diagnosis to be made. In particular the changes seen radiologicaly need to be bilateral and diffuse. However, the radiological changes to the lung are identical to those seen in fibosing alveolitis occurring in individuals who have never been exposed to asbestos. This commonly forms the basis for a defence. Lung biopsy and fibre counts are something of a minefield as the Sabin judgement illustrates. Patchy or isolated changes seen on CT scanning are not typical and do not underpin a diagnosis of asbestosis. Lung function tests demonstrating a restrictive loss of function are supportive and help define the degree of disability caused.

It should be noted that not all medical practitioners understand the criteria for the diagnosis of asbestosis and will commonly refer to a condition as being asbestosis when, in fact, it is not. Patients may therefore be informed that they have a compensatable condition when this is not the case.

Lung CancerMost cases of lung cancer are linked to a history of cigarette

smoking. Nonetheless, there is very clear evidence that asbestos exposure is multiplicative of the risk. Previously it had been held that asbestosis had to be present to allow a diagnosis of asbestos related lung cancer to succeed. This is no longer true and lung cancer in isolation claims have been successful. The same exposure criteria as for asbestosis applies to allow a claim for lung cancer to proceed and, in my experience, these claims are more difficult to progress due to the diversity of medical opinion and the relatively low numbers of such claims being made. q


Cervical Screeningby DR COLIN CLELLAND MB, ChB, MD, FRCPath of Pathology Oxford Ltd

Over several decades, the National Cervical Screening Programmes in the UK have been very successful in reducing the incidence and mortality of cervical cancer by using cervical

smears to detect pre-cancerous abnormalities (CIN) that are then removed at Colposcopy clinics. Probably around 4,000 cervical cancers are prevented annually in England by screening and deaths have fallen below 1,000 per annum, most occurring in women who have either not been screened at all or have only been screened intermittently.

From 2005 onwards the introduction of liquid-based cytology ensured further progress in the quality of cervical screening. The plastic brush sampler for liquid cytology is better at removing cells from the cervix than the previously used wooden spatula. Before 2005, a random sample of cells would be transferred from a wooden spatula to a slide and then the spatula thrown away, often with many thousands of cells remaining on it. By comparison, with liquid cytology, virtually all the cells are rinsed off the brush into the liquid which is then sent for testing.

In 2012 in England there will be a further enhancement with Human Papilloma Virus (HPV) testing of women with low grade smear abnormalities. This will allow triage of these women into either a high risk group with a positive HPV test who will be fast-tracked to Colposcopy or a low risk group with a negative HPV test who will return to normal 3 yearly smears. HPV is intimately related to CIN and

cervical cancer in that a negative HPV test indicates an exceedingly low risk of a significant abnormality and the screening interval can safely be extended to 3 years even for women with low grade smear abnormalities. These are the successes of the screening programme but the programme is not without some areas of controversy that can lead to a legal action.

As with any cancer screening programme there is a balance to be met between the level of worry and physical harm from the investigation and treatment of asymptomatic women against the value of detecting and treating abnormalities to prevent a cancer. Recently, the evidence for potential harm following treatments damaging the function of the cervix of young women has been highlighted. Premature labour during pregnancy after excision of cervical abnormalities is concerning for women of reproductive age as their babies face the consequences of premature birth. It is probably fortuitous that the screening age range in England was increased to 25 in 2005, as this effectively prevents treatment (as well as diagnosis) of CIN in these young women.

Some would argue that there is a serious downside to excluding young women from cervical screening, citing the increasing number of cervical cancers detected in the first cohort of women aged 25-29 entering the screening programme. The National Cervical Cancer Audit recently reported a large increase in cancers in this age group with one third being cancers of a size and stage that would normally require removal of the uterus (hysterectomy). Arguably, this is more damaging for a woman than the risk of premature labour from treating CIN because the woman’s fertility is seriously compromised. Eggs can still be harvested from her ovaries and a surrogate used to carry her baby but the woman has undoubtedly lost an important part of her fertility.

Of course, cervical screening is also well known for the few notable instances where there have been failures in laboratories. Smear abnormalities missed or misinterpreted by laboratory screening staff can lead to a delayed diagnosis of cervical cancer causing injury or death. Many years ago, at Kent and Canterbury Hospital, errors in the checking of smears by pathologists were identified very tardily due to poor management and the lack of a chain of responsibility. All services now have proper staffing structures and multidisciplinary teams to ensure correct procedures and appropriate clinical decision-making. Training of laboratory screening staff is regular and targeted to areas of difficulty. Laboratories now have stringent quality assurance checks with the quality standards being widely published and transparent so lapses are now likely to be rare events. If there is a problem in laboratories it is the excessive detection of low grade abnormalities of questionable importance due to a degree of nervousness in the staff not wishing to miss any abnormality at all. As mentioned above, HPV testing in the near future may help to reverse this trend and streamline the service.

The quality of the smear taken by the nurse or doctor is an important part of the screening process because without a good sample even the best test may not detect an abnormality. Smeartakers failing to follow guidelines by using non-standard samplers, taking samples when the woman is menstruating or sending a sample when they have not been able to visualise the cervix can all lead to substandard, non-representative samples and a potentially false negative result.

With care and caution, cervical screening can be safe and effective but lapses can occur at any stage of the process. A major challenge remaining quite resistant to change is to encourage more than 80% of women eligible for screening to come forward for their smears. q


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